Is Joint Tenancy Property Title Registration Available in Costa Rica?
In English Common Law Jurisdictions, such as Canada and the United States, registering a Property Title in Joint Tenancy as between a husband and a wife is the norm. Joint Tenancy embodies the principle of Right of Survivorship. This principle allows the surviving spouse, as between a husband and a wife, to efficiently and effectively transfer the Property Title into their name as the sole Property Title holder, following the death of the other, without reference to the provisions of a Will and receiving an Order of Probate.
Usually, such a transfer is effected by the surviving spouse presenting the Death Certificate of the deceased spouse at the Land Registry Office in the jurisdiction where the property is located and the transfer of the deceased spouse’s interest will be transferred to the surviving spouse within a short period of time.
Costa Rica Civil Law
Costa Rica is a Civil Law Jurisdiction, which does not recognize the legal concept of Joint Tenancy. When a husband and wife register Property Title jointly in Costa Rica, each spouse has a distinct registered interest in the Property Title as a whole, as a Tenants in Common, known as a “Derecho Interest”.
This legal concept of Tenants in Common does not embody the principle of Right of Survivorship, with each spouse’s registered Property Title interest being a separate and distinct interest from the other. For a surviving spouse to inherit the property interest of a deceased spouse, the Property Title interest held by the deceased spouse must be transferred to the surviving spouse by a Public Deed prepared and registered by a Costa Rica Notary Public, following the Probate of a Will providing for the subject inheritance.
This provision would also apply where a Costa Rica company was the registered Property Title holder and a husband and wife were joint shareholders in the company. Holding property in a Costa Rica corporation will also provide additional options of structuring the Articles of the corporation to provide for the disposition of the corporate shares following the death of a shareholder. This additional Estate Planning option should be considered in addition to making a Costa Rica Will for the disposition of your Costa Rica assets.
My Opinion
It is possible to present to the Costa Rica Court, a valid foreign Will covering the world assets of a deceased spouse, that has received a Court Order of Probate in the foreign jurisdiction, and request that the Court provide the necessary Order for the foreign Will to be applied in Costa Rica. The Application for such assistance to the Costa Rica Court is known as a Letters Rogatory Application. This is an Application to the Costa Rica Court, which recognition is discretionary on the part of the Court. It is by no means a secure way to proceed in determining the disposition of a deceased’s assets in Costa Rica.
In my opinion, it is a better practice for a husband and wife to have a Joint Costa Rica Will to provide for the inheritance of the Property Title interest by the surviving spouse. The Costa Rica Will is able to be subordinated to the provisions of a foreign Will and limited in its application to Costa Rica assets only. Such a Will can be admitted into Probate immediately following the death of a spouse and the Probate process completed in approximately six to eight months time. This permits a much more timely transfer of the deceased spouse’s assets to the surviving spouse.
