The debt will be considered as part of the liabilities that the estate asset must cancel BEFORE being able to be distributed among the heirs.  The executor must consider among the credits to be paid, the sums that have been demonstrated either within the process or in a collection process that has been “attracted” by the universal process.

A privileged creditor (with a mortgage or chattel mortgage) must serve the estate of its collection process, but due to the nature of this privileged position, he will not be delayed by the evolution of the estate process.

If you have questions do not hesitate to send them to ablanco@arturoblancolaw.com

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Thus, the parents share a degree with the husband or common law spouse of the deceased person and the children of this. By law then, these three distinct heirs share a degree of equality. In the case of the spouse or cohabitant, he/she has limitations corresponding to the amount he can receive depending on the community property within the probate. But, as a rule, he/she is one of the co-heirs.

In some cases, while the estate is being processed, one of the parents of the deceased may die. If this happens, their inheritance position could then be expanded to include other people such as the deceased’s siblings, who will inherit within the estate of their brother via this situation.

It is, however, feasible for the Parents to assign their hereditary rights to the children of the deceased, in order not to dilute the assets of the inheritance or to simplify the processing of a process.

Any questions please send them to ablanco@arturoblancolaw.com

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This is mandatory even though there is an eventual representation by the parents (in exercise of Parental Authority), as there may be cases in which the parents can also turn into co-heirs together with their minor child.  Here, you have a case where there is eventually a conflict of interests in which the interest of the child must be protected.

Estate proceedings that have minors or incompetent individuals must be processed before a civil court as an additional guarantee of objectivity in favor and protection of them.  The courts will oversee, evaluating the requests for the sale of goods in advance, or the distribution between heirs where the protection of the needs of minors is not considered.

The position of a minor in this sense, can be seen in a similar way to that of a creditor of the succession, where he has a rank of privilege and special protection. This will remain until they turn 18 (the legal majority), at which time they are free to make their own decisions with legal value.

The incompetent duly declared, find themselves in a similar situation.  The characteristic of the situation of vulnerability in their mental capacities grants them also the need to protect them.  To this end, it is the Attorney General’s Office, which assumes a role of reviewing the interests protected by these adults but with diminished capacities.

It is the task of the Executor during the process, to ensure the protection of the rights and eventual needs of these people.

If you have any questions please write me at ablanco@arturoblancolaw.com

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The first thing to understand is that a collection process (or execution) arises when there is a default or non-payment of a debt that is based on a document recognized by law as a collection title.  Born on the lack of timely payment, the law allows the creditor to go file for the repayment of the debt in default.

In order for a “debt” to be collected, it must

• Be based on a determined amount
• Collectability. Debt must be overdue (no pending deadline). This is either because the agreed date has come to an end, or because one of the agreed payments was not made, causing the transaction to enter in arrears.
• It is supported by a document that has the recognized rank of an executive title or collection document. This last issue should be carefully analyzed. Any debt to be collected, must be based on one of the following documents. These are considered evidence of the debt by law and give the creditor the right to seek garnish and eventually withdraw the debtor’s auction assets.

Documents with the status of collection documents

1. Testimony or certification of an unrecorded public deed. It is a document granted before a notary, which may have been enrolled or by default was not enrolled, but that it supports and recognizes the existence of a debt.
2. Certification of a public deed duly registered in the National Register.
3. The private document recognized judicially as well as when called under confession and the debtor accepts that it supports sums of money not fully paid.
4. A final court judgment establishing an obligation to pay a sum of money.
5. The chattel mortgage or mortgage.
6. All other documents that by special laws, have collection force, such as certifications issued by public accountants or public entities bodies whose balances are certified (such as is the case of the Costa Rican Social Security).

Each of these titles recognized by law, gives the creditor the right to seek a garnishment order against the debtor’s assets.

Defense regarding the judicial collection process

Usual defense under law call for:

1. The falsity of the basic document of collection.
2. The lack of enforceability of the obligation, as it is not expired within the agreed period, or because there is an agreement of parties.
3. Evidence of proven payment (in writing).
4. The period of validity of the title has lapsed, since any debt has a maximum period to demand its collection prior to the statute of limitations.

Having said the above with regards to the typical defenses, it is also possible for the debtor to request a conciliation with the creditor. This is an opportunity to reach an agreement within the collection process.  Also, the debtor may argue the partial lapsing of the interests for the period exceeding one year before he was served.

The task of the defense attorney in a judicial collection process

It is important to analyze with each client, its particular relationship with the creditor. This goes beyond the signed document now under collection.  Examining the reality of the credit relationship may provide legal arguments when responding to any lawsuit. This analysis may point out defects that may affect the validity of the collection title or the opportunity of the collection process filed.

Getting your money back today becomes more necessary than ever.  Do not hesitate to contact us, and we will gladly give you the best legal advice on this important topic.

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