Libro Cuarto Título II. Proceso sucesorio

Without prejudice to the interested parties obtaining the judicial declaration of other rights that may have arisen from the death of their decedent, or from his presumed death, the succession proceedings shall determine, at a minimum:

1º.The death of the decedent or his presumed death.

2º.The relict property.

3º.The debts encumbering the inheritance.

4º.The names of the heirs.

5º.The payment of the inheritance tax.

6º.The partition of the inheritance.

The competent judge shall have jurisdiction over all questions that may arise on the occasion of the death of the decedent, as well as to hear all claims that may be brought with respect to the estate.

In the lawsuits pending upon the opening of the succession, the time limits shall be suspended for the time necessary for the case files to be transferred to the competent judge and for the succession to be legally represented.

Without prejudice to the steps of the succession proceedings, the pending lawsuits and those brought by or against the decedent's estate shall be processed in a separate file.

The lawyer, notary, legal representative, accountant or expert who, in the judicial or extrajudicial processing of the succession proceedings, act in a manner causing harm to the public treasury, shall be liable for the harm suffered, provided the act does not constitute a crime, in which case, in addition, the record shall be submitted to the judge of the criminal jurisdiction, without prejudice to the disciplinary measures that the respective professional associations may adopt.

The succession proceedings may be processed in two forms:

1.Extrajudicially, before a notary, provided that all the heirs agree; and

2.Judicially, by filing it before a competent judge.

At any time, the extrajudicial proceedings may be transformed into judicial proceedings, upon any of the heirs requesting that the respective file be referred to the competent judge.

With the agreement of all the heirs, also at any time the judicial file may be lodged before a notary, to continue the extrajudicial proceedings.

Those having an interest in the inheritance may initiate the succession proceedings, such as the surviving spouse, the heirs, the Public Prosecutor's Office, the legatees, the creditors, the executor or in any other similar capacity.

The death certificate or the certification of the declaration of presumed death, the documents proving kinship and the will, if any, shall be attached to the commencement petition.

Unless the interested parties submit it, the judge or the notary shall request a report from the respective register as to whether or not wills or donations by reason of death executed by the decedent exist.

In the same decision in which the proceedings are docketed, the publication of edicts shall be ordered, summoning those who have an interest in the estate, to be published three times, within the term of fifteen days, in the Official Gazette, and they shall contain the names of the petitioner and of the decedent, the type and form of proceedings being docketed, as well as the place, day and time for the holding of the meeting of heirs, before the competent judge or the notary, as applicable.

The term of the publications does not interrupt the course of the other steps that must be carried out.

The Public Prosecutor's Office shall be considered a party in succession proceedings, until there is a declaration of heirs.

In addition, it shall represent absent heirs while they do not appear or accredit their legitimate representative, minors or incapacitated persons who have no representative, and the State and the Universities in the case of vacant inheritance.

For succession proceedings filed abroad concerning property situated in Guatemala to take effect, the competent Tribunal of this Republic, at the request of an interested party, shall order publication of edicts summoning those who, under the laws of Guatemala, could be prejudiced by the adjudication, transfer, or acts performed in the place where the succession was processed. The publications shall be made three times with intervals of at least five days between each one, in two newspapers, one of them being the Diario Oficial. Once the publications have been made, the corresponding taxes have been paid in this Republic, and the other requirements established by law have been fulfilled, the respective registrations shall be ordered to be made and possession of the property to be given to those entitled thereto.

If there is opposition, it shall be processed in an ordinary trial.

Testamentary and intestate estates may be subject to insolvency proceedings in the same cases in which private individuals may be so subject, remaining subject to the provisions governing the matter.

Testamentary succession proceedings apply when there is a valid will, open or closed, executed in accordance with the formalities established by law.

The General Register of the Republic shall establish the manner of keeping the Register of Wills.

Whoever has a will in his possession has the duty to present it to the competent judge, as soon as he learns of the death of the testator.

At the request of any heir, of the surviving spouse or of the alleged executor, the judge may order the holder of a will of a deceased person to deliver the document. In case of refusal, he shall order seizure.

If it is an open will and there is agreement of all the heirs, it may be delivered to the notary designated by them, for purposes of the formation of the extrajudicial succession proceedings.

The person requesting the opening of the proceedings being a legitimate party, the judge shall deem it commenced and shall convene the interested parties to a meeting, summoning them in the manner provided for by Article 456.

At said meeting the will shall be read, the heirs and legatees shall express their acceptance, the testamentary executor shall be made known and, in the event there is none and it is necessary, appointment thereof shall proceed in accordance with the provisions of the Civil Code.

An heir who does not attend the meeting may appear in writing, stating whatever is appropriate to their right.

The rules that the testators have established for the inventory, appraisal, liquidation and division of the property shall be respected by the instituted heirs

If the will is neither challenged nor the capacity of the interested parties objected to, the judge, within the three days following the meeting, without the need for any motion, shall recognize as heirs and legatees those who are named.

If the will contains any void condition or condition impossible to fulfill, as well as provisions contrary to law and morals, the judge shall make the corresponding declaration in the same order.

If the validity of the will or the legal capacity of any heir or legatee is challenged, the controversy shall be conducted in an ordinary trial, without thereby suspending the security measures, the inventory and the appraisal of the property.

The provisions of the preceding article shall also be observed with regard to claims asserted with respect to the property and those brought on behalf of the testamentary estate. Both shall be pursued in the trial corresponding to their nature; and whatever increases the estate by virtue of the latter shall be added to the inventory, with a statement of the origin and other circumstances of the newly acquired property.

At the act of delivery of the closed will and before any other proceeding, the judge, in the presence of the applicant and the secretary, shall draw up a record stating how the cover and its seals are found, and other circumstances relating to the condition of the sealed envelope. The record shall be signed by the judge and by the other persons who attended the act.

If the will is not in the possession of the person requesting the opening, the judge shall request that the person holding it exhibit it, and in the presence of the latter a record shall be drawn up.

For the act of opening the will, in addition to the interested parties, the notary and the witnesses who signed the cover shall be summoned.

The notary shall present a certified copy of the record, drawn up in his protocol, of the closed will in question.

If all interested persons are not known, the Public Prosecutor's Office shall also be summoned.

The opening proceeding shall be carried out with those who attend. If all the witnesses and the notary cannot appear, by reason of death or absence from the place where the proceedings are being conducted, the statement of those who are able to be present shall suffice.

The judge shall take a declaration under oath from the notary authorizing the cover sheet of the will and from the instrumental witnesses thereof, so that they may state whether the signatures appearing in the document exhibited to them are their own, whether they consider as authentic those of those who have died or are absent, and whether they saw them all affixed in a single act.

They shall be permitted to examine the sealed sheet and shall likewise state whether they find it in the same condition in which it was when they signed the cover and whether it is the one delivered by the testator.

If neither the notary authorizing the cover nor the instrumental witnesses attend the act of opening, because they have died, because they are absent, or because they are unable to do so, the judge shall suspend the opening proceeding.

Immediately thereafter, the judge shall order that edicts be published in two newspapers, one of which shall be the Official Gazette, on a single occasion, announcing the day and time on which the opening of the will shall proceed.

In this case, the proceeding shall be carried out with the interested parties who are present, the judge ordering the necessary measures to verify the authenticity of the signatures of the notary and the witnesses.

Once what is provided for in the preceding articles has been carried out, the will shall be opened and read.

Immediately, the judge shall initial and seal each of the pages of the will.

The secretary shall draw up a record to be signed by those present, recording everything done and the observations made.

Immediately thereafter the judge shall issue a decision ordering the protocolization of the will and shall deliver it to the notary designated by the majority or, failing that, to the one decided by the judge himself.

The notary may thereafter issue the certified copies requested by the interested parties.

Once the closed will has been protocolized, proceedings shall continue as provided for the succession proceedings in the case of an open will.

But if objections to the cover of the will have been raised, the succession proceedings may not be processed extrajudicially.

For the formalization of special wills, the same procedures indicated in the preceding paragraph for closed wills shall be followed, with the modalities indicated in the following articles.

The witnesses who appear at the proceeding shall be examined separately and shall testify on the following matters:

1.Place, time, day, month and year in which the will was executed.

2.The age of the witnesses and the place where they were domiciled when the will was executed.

3.Whether they distinctly saw and heard the testator clearly express his intent.

4.Whether the testator enjoyed mental capacity and was free from coercion.

5.The tenor of the testamentary disposition, where applicable, and the persons who participated in the act.

6.Whether what is stated in the memorandum that will be placed before them is substantially what they heard and was ordered by the testator, where applicable.

7.Whether the signatures likewise placed before them are in their own handwriting, and in case of not knowing how to sign, whether they instructed another person to do so for them.

The Guatemalan diplomatic or consular authorities to whom a maritime will, executed in accordance with the provisions of the Civil Code, is presented shall ensure that, subject to the external formalities of the place of residence, the commander and witnesses before whom it was executed ratify their statements. Immediately thereafter, they shall forward the testamentary instrument, the certification of death and the corresponding records to the Ministry of Foreign Affairs, which shall deliver them to the competent judge for its formalization.

If the statements are satisfactory and all legal requirements have been fulfilled, the judge may declare the special will formal and shall order its protocolization.

Upon initiating an intestate proceeding, the complainant shall establish the interest on the basis of which he proceeds, by any means of evidence.

He shall also indicate, if he knows them, the names and residences of the relatives in the direct line and of the surviving spouse, or in their absence, of the collateral relatives within the fourth degree.

If possible, the certifications of the corresponding entries of the Civil Register shall be attached at once.

The judge shall deem the succession filed and shall order the interested parties to be summoned in the manner provided for by Article 456, without prejudice to having them notified by written notice or by certified mail.

During the holding of the meeting, the presumed heirs shall express their acceptance; and if there is no agreement on the manner of administering the inheritance, the judge may appoint as administrator the person designated by the majority, or a third party of his own choosing. The presumed heir who does not attend the meeting may appear in writing, setting forth what is appropriate to his right.

If any interested party or the Public Prosecutor's Office challenges the capacity to succeed of any heir or the validity of any document with which kinship is sought to be established, the controversy shall be heard in an ordinary trial, without thereby suspending the security measures, the inventory, or the appraisal of the property, or the declaration in favor of heirs not affected by the opposition.

In view of the Civil Register certificates presented by the interested parties, the judge shall make the declaration of heirs, in accordance with the provisions of the Civil Code.

The declaration shall always be made without prejudice to a third party with equal or better right.

Any person with equal or better right may request the extension or rectification of the order within a term of ten years, from the date of the declaration.

Where there is no will and no persons within the legal degree come forward to inherit from the decedent, the decedent's succession shall be declared vacant, with proceedings always conducted judicially.

Once the complaint of vacant succession has been filed before the competent judge, the latter shall order such security measures as he deems appropriate, in accordance with the provisions for the administration of the inheritance.

Publication of the edicts shall immediately be ordered three times during thirty days, in two newspapers, one of which shall be the Official Gazette, fixing a time limit for those having an interest to appear.

If, in view of the circumstances of the case, the judge deems it advisable to make the edicts known additionally by other means, he shall so order, giving the necessary rules.

When any interested person appears alleging his or her status as heir, a separate file shall be formed with his or her petition, the administrator's management continuing in the meantime until there is a declaration of heir in favor of the petitioner.

Once the heir is declared, the administration shall cease and possession of the inheritance shall be delivered to him or her in the condition in which it is found, without prejudice to the liability claims he or she may have against the administrator for intent, fault or negligence in the performance of the office.

In all proceedings of the vacant inheritance, the Public Prosecutor's Office, as representative of the State, and the universities shall intervene.

If the decedent is a foreigner, his death and the report of a vacant succession shall be notified by official communication to the diplomatic or consular representative of his country.

The steps of the extrajudicial succession proceedings shall be recorded in notarial records, beginning with the one recording the request made by the interested parties, who shall at the same time submit the documents referred to in Article 455.

At the foot of the first record, the notary shall declare the extrajudicial succession proceedings commenced and shall order publication of the corresponding edicts, to summon those who consider themselves entitled to the inheritance by universal or singular title, and shall order all other measures provided for in the General Provisions of this Title.

Simultaneously with the publication of the edicts or subsequent thereto, the notary may request, through the corresponding agency, that the value of the property subject to hereditary transmission be fixed, which shall be recorded in the inventory.

The parties may also propose an expert authorized by the Ministry of Finance and Public Credit, who may fulfill his assignment when the inventory is prepared.

However, in the case of shares or other securities, the notary shall send an official communication to the Superintendency of Banks or to other competent offices, in order to obtain the corresponding value.

The notary shall draw up the inventory of the hereditary estate, taking care to specify in detail the property, rights and actions constituting the assets, with their current value; and the liabilities, formed by the obligations, deductible expenses and costs encumbering the inheritance. The notary shall also indicate matters relating to community property and litigious property.

The notary shall attach to the file the inventory, the documents substantiating the liabilities and those determining the nature of the property.

On the day and time set for the meeting, the notary shall read the will, if there is one. The heirs, and where applicable the legatees, shall state whether they accept the inheritance or legacy and whether they mutually recognize each other's hereditary rights. The surviving spouse may request that matters relating to the community property be placed on record.

By majority, a decision may be made on the manner of administering the inheritance while the partition is being carried out; and the notary shall record what remains in the possession of each person.

The justified absence of any heir or legatee shall not prevent the holding of the meeting, and such heir or legatee may subsequently place on record before the notary whatever is appropriate to his right.

If the heirs and legatees consent, the creditors may attend the meeting.

Once all the requirements of the case have been fulfilled, the notary shall deliver the file to the Public Prosecutor's Office, for the purpose of obtaining its opinion.

The Public Prosecutor's Office may request the submission of the documents it deems necessary or the amendment of those already filed if they are defective, and challenge the inventory.

It shall state who the persons called to inherit from the decedent are and shall approve the classification of ganancial property contained in the inventory.

If the interested parties concur with the observations made by the Public Prosecutor's Office and comply with its requirements, the notary may make the declaration referred to in the following article.

If the heirs or legatees do not concur with the observations, the notary shall submit the file to the competent judge, who shall decide the matter in the manner established for incidental proceedings and, when the decision has become final, shall return the proceedings to the notary with certification of what was decided.

When the Public Prosecutor's Office, in the case of testamentary succession, objects to specific clauses of the will, without alleging the nullity thereof, the notary may make the corresponding declaration; but he shall be obligated to submit the file to the competent judge for purposes of its homologation.

If the validity of the will or the capacity to succeed of any heir or legatee is challenged, the dispute shall be conducted in an ordinary trial and the notary shall forward the file to the competent judge.

In view of the proceedings, the documents submitted and the opinion of the Public Prosecutor's Office, the notary shall rule in a reasoned manner recognizing as legal heirs those entitled thereto in accordance with the Civil Code for intestate succession, with the exception provided for in Article 481; or as heirs and legatees those appointed, where there is a will.

The judge who receives the record, either pursuant to the provisions of Article 493 or because the notary deems it advisable, if the judge finds that it is in proper form, shall proceed to its approval without further formality, issuing an order setting forth:

1º.That the death of the decedent or their presumed death is proved.

2º.The name and address of the notary before whom the extrajudicial succession proceedings are conducted.

3º.The name of the heirs who proved their status as such.

4º.The declaration regarding clauses containing conditions impossible to fulfill or provisions contrary to morals or the law.

5º.The approval of the inventory, if applicable. This order shall be appealable.

Once the judicial decision becomes final, the file shall return to the possession of the notary, with certification of what was decided.

The notary shall deliver the file to the General Directorate of Revenue so that, without further proceedings and on the basis of the record, it assesses the respective taxes, in accordance with the provisions of the Law of Inheritances, Legacies and Donations.

The file shall be returned to the notary with a certificate of what was decided.

The notary shall issue a certified copy of the pertinent parts to each of the heirs and legatees, in all cases inserting the passages containing the recognition of heirs and legatees, the approval of the proceedings, where applicable, and the tax settlement.

The certified copies shall be presented to the corresponding registries; and within the fifteen days following their issuance, the notary shall give notice to the offices as appropriate, for purposes of the corresponding transfers.

Once all the corresponding proceedings have been completed, the notary shall remit the file to the General Archive of Protocols, unless the heirs decide to make the partition of the property, in which case one shall wait until this operation is completed in accordance with the provisions of the corresponding chapter.

In all matters provided for in the preceding articles, the remaining provisions of this Title shall apply.

If the same succession proceedings are initiated by different heirs simultaneously before different notaries, with no agreement of the parties to reduce them to a single one, all of them shall be referred to the competent judge to continue a single judicial proceedings.

At any time the heirs may replace the notary before whom the extrajudicial succession proceedings have been commenced.

The replaced notary, upon being notified of the substitution, shall deliver the file in his possession to the successor notary, but may demand that before doing so he be paid or be furnished sufficient guarantee for what is owed to him for fees, according to the tariff and in proportion to the work performed.

If the notary resists delivering the file without justified cause, the judge may order the occupation, following the procedure indicated for incidents.

When measures are required that can only be carried out by judicial order, such as delivery of funds, affixing of seals, opening of premises, delivery of property in the possession of third parties, etcetera, the notary shall address the judge by official communication, requesting compliance with such measures.

The judge may, before ordering them, direct that the extrajudicial file be brought before him for review, which shall be returned to the notary once the measure has been carried out.

If there is no executor, administration of the inheritance may be requested by any of the heirs or by the surviving spouse, when the condition thereof so requires, with the object of securing, preserving and improving the estate of the decedent, attending to the normal investment to which the fruits are destined, selling the crops, leasing the immovable property, making the current investments to increase the production of the property left by the decedent, paying the obligations and collecting the pending rents or credits.

Before any succession proceedings are promoted, the judge, with the intervention of the Public Prosecutor's Office, may dictate the necessary measures to secure the property in the following cases:

1º.If the decedent was not known or was in transit in the place.

2º.When there are minors, absent persons or incapacitated persons who have an interest in the inheritance and are not duly represented.

3º.When requested by any creditor who legally substantiates his title.

4º.When there is danger that the property may be concealed or dissipated.

5º.When the heirs are not known or, if there are any, they renounce the inheritance.

When dictating the precautionary measures, the judge shall gather into packets all the papers of the decedent and, closed and sealed, shall deposit them with the necessary safeguards. He shall also give an order to the respective offices to forward to him correspondence arriving for the decedent, with which he shall do the same as with the other papers. Records shall be drawn up of all of this.

If nine days have elapsed since the death of the decedent, the will is not presented, or no executor has been appointed therein, the judge shall proceed to appoint an administrator, who shall have the status of mere depositary of the property, and may not perform any other administrative functions other than those relating to the payment of funeral debts, both subject to prior judicial authorization.

The administrator shall receive the property by inventory, shall remain in office until the interested parties appear, and must meet the following requirements:

1.Be over eighteen years of age.

2.Be of well-known good conduct.

3.Be domiciled in the place where the succession is opened.

4.Hold immovable property with which to secure the management and outcome of the administration or, in the absence thereof, provide security to the satisfaction of the judge.

If the judge appoints an executor or the person designated in the will appears, the administrator shall deliver to him the property received. The variations undergone by the inventory shall be recorded in the delivery.

The correspondence, books, papers and documents of the decedent shall also be delivered to the executor, once note thereof has been taken in the record.

If the heirs, or their respective representatives, appear, the administrator shall make delivery to them with the same formalities.

For the administration of the property, the provisions of the will shall govern; and, in default thereof, what the heirs decide. If there is no agreement on the manner of administering the inheritance, the judge may appoint as administrator the person designated by the majority, or a third party of the judge's own choosing.

The judge shall establish the administration regime, and may entrust it to a Bank of well-known standing.

At any time one or more heirs may terminate the judicial administration, by giving sufficient guarantee in the judge's discretion, which secures to the co-heirs the integrity of their inheritance share and the timely receipt of the corresponding fruits.

In equality of conditions for exercising the administration of the inheritance, the judge shall prefer the heir indicated by the majority. Such majority shall be computed by capital and, in case of a tie, by persons.

Whatever the administration regime may be, the co-heirs have the right to exercise supervision over it, under the conditions established by the judge.

Unless it is a Bank, the administrator shall be of legal age, of well-known good conduct, be domiciled in the place where the succession is opened and, if any heir or legatee so requests, provide sufficient security as determined by the judge.

The administrator shall keep a detailed account of the administration and report on it to the judge every six months, or when any interested party so requests, or when the judge deems it advisable. Until the accounts have been approved, the security furnished by the administrator shall not be cancelled.

The administrator may not assert in judicial proceedings the claims that, by reason of improvements, maintenance or repair, the administrator may have against the inheritance, except when such expenses were incurred with prior authorization.

The administrator shall be entitled to the fee designated by the judge, in accordance with the law.

So long as the heirs have not been recognized, the judge may authorize the administrator to take such action as may be appropriate in favor of the hereditary interests, whether it involves bringing claims aimed at recovering property or enforcing rights belonging to the estate or answering claims brought against the latter, as well as any other extrajudicial proceeding.

Once the heirs have been recognized, representation of the estate corresponds exclusively to them.

The judge, considering the circumstances of the heirs, may authorize the administrator of the inheritance to supply what is necessary for the maintenance of those heirs, in accordance with a budget previously approved by him.

If upon termination of his commission, the administrator places obstacles to the delivery of the property to the heirs or legatees, he shall be compelled to return it, even if none of the interested parties requests it; and if he resists, the corresponding criminal proceedings shall be opened on its own initiative.

All matters relating to the rendering of the administrator's accounts and challenge thereof shall be decided by the incidents procedure, in a separate record.

At the request of a party, judicial partition shall proceed, provided that the testator has not made it before.

For its procedure, the provisions of Articles 220, 221, 222, 223 and 224 shall govern, insofar as applicable.

In every partition of hereditary property the following rules shall be observed:

1st. If it should involve a married person, the marital agreements that have governed the conjugal patrimony shall be taken into account.

2nd. If there should be own property of the surviving spouse, the due separation thereof shall be made.

3rd. If the conjugal patrimony should have been under the community property regime, in the first place the separation of the amount of those corresponding to the surviving spouse shall be made.

4th. What is necessary shall be ordered to secure the support portions and other obligations encumbering the inheritance, stating the mortgages to be constituted or the guarantees to be furnished.

5th. The manner and form of paying the legacies shall be ordered, observing the rules on priority, reductions and time limits for paying them.

6th. If the immovables of the inheritance are subject to encumbrances, they shall be specified, indicating the manner of redeeming them.

7th. What remains, after making the deductions referred to in the preceding subparagraphs, and the debts charged to the inheritance, is the hereditary mass distributable among the heirs.

8th. Once the costs and debts of the succession have been paid, or after designating property with which to do so, the partitioner shall carry out the division, seeking the greatest possible equity in adjudicating the property.

9th. In the event that a family patrimony should be constituted, by order of the testator, proceedings shall be in accordance with the provisions of the Civil Code and of this Code.

If a question arises as to whether the property admits or not convenient division, the judge, after hearing experts, shall decide what is appropriate, by way of incident.

Property that is indivisible or that does not admit convenient division may be adjudicated to one of the heirs, on condition of paying the excess to the others. If this is not possible and the heirs do not agree to hold the property in common usufruct, or on another manner of payment, its sale shall be ordered, with preference given to the heir who makes the best bid.

Any difference in the price shall increase or decrease the hereditary estate. In these cases, the partition shall be modified only with respect to the difference.

If there are several heirs, any heir who wishes to alienate his rights to a third party for consideration shall previously make it known to the others so that they may exercise their right of first refusal.

The heirs shall be preferred at the same price, if they exercise this right within the thirty days following the corresponding notice and comply with the other conditions imposed on the third party.

The right granted in this article does not apply if the alienation is made to a co-heir.