Minors as Heirs in Puerto Rico

When a young father or mother dies, it is very common for some of the heirs to be minor children. A child inherits just like an adult: the child's share is not smaller because of age. What changes is who decides for the child and what safeguards the law sets up to protect what the child receives.

In this guide we use a few terms worth explaining. Patria potestad (parental authority) is the set of duties and powers parents have over their minor children. The causante is the person who died, whose estate it is. The declaratoria de herederos (declaration of heirs) is the document, issued by a court or a notary, that states who inherits when there is no will. The Ministerio Público (prosecutor's office) is the government attorney's office that, in these procedures, looks after the interests of minors.

Who manages what a minor inherits

The parents, jointly. Parents with patria potestad jointly manage the child's property (Art. 625 of the Código Civil de Puerto Rico de 2020, the 2020 Civil Code). If one parent has died, the surviving parent normally takes over that management.

Managing is not the same as disposing. Parents can take care of the property: collect rents, pay CRIM (Municipal Revenue Collection Center) property taxes or maintain the house. But they cannot sell or encumber the child's real estate, or personal property worth more than $2,000, without prior authorization from the Tribunal de Primera Instancia (Court of First Instance) where the property is located, and they must prove the operation is necessary and useful (Art. 632). To encumber means, for example, to mortgage. Leasing the minor's property for 6 years or more also requires authorization (Art. 633).

An important exception. If the father or mother was disinherited or is unworthy of inheriting from the causante, the property the child receives from that inheritance is outside that parent's management, and opposing interests are presumed (Art. 627(b)). See disinheritance and unworthiness.

Accepting or refusing on the minor's behalf

Accepting or refusing means saying yes or no to the inheritance. Minors accept or refuse "with the assistance the law requires" (Art. 1576). For a guardian (tutor), the Code requires court authorization to refuse, and only if the inheritance would be a significant burden (Art. 167). For parents with patria potestad, the 2020 Code does not expressly say whether they need court authorization to refuse. If you are thinking about refusing an inheritance on your child's behalf, for example because it has more debts than assets, get advice first. Also remember that heirs are liable for debts only up to the value of what they receive (Art. 1587).

The declaration of heirs when there are minors

Before a notary, with notice to the Ministerio Público. The declaratoria can be done in court or before a notario (in Puerto Rico a notary is an attorney). If it is done before a notary and the interested parties include minors or incapacitated persons, the notary notifies the Ministerio Público. If there is no written objection within 30 days, the notary continues with the procedure (Ley 282-1999, Art. 8). If the Ministerio Público objects, the notary must stop and the matter goes to court (Art. 6).

Plan for those 30 days. These are 30 days added to the normal time the procedure takes. There is no other general waiting period for descendants or a spouse in the notarial declaration; the 15-day published notice (edicto) applies only when collateral relatives inherit and the property is worth more than $5,000. See the declaration of heirs.

Handwritten will. If the causante left a will written by hand (testamento ológrafo), the procedure to validate it before a notary also provides for notifying the Ministerio Público when there are minors without representation.

An example with numbers

To run your own numbers, you can use the intestate share calculator.

Selling or mortgaging: the court's permission

What must be shown. The court wants to know why the sale is necessary or useful for the minor. For example, that the house is deteriorating and no one can maintain it, or that the sale will make it possible to pay the estate's debts.

What happens to the money. The money that belongs to the child remains the child's. Ask your attorney what conditions the court might set on how it is kept or used.

Why this affects the whole family. If the adult siblings want to sell their mother's house and one of the heirs is a minor grandchild, the entire sale depends on that authorization. Build it into the timeline from the start. See selling an inherited house.

The guardian named in the will

A manager chosen by the person making the will. Someone who leaves a significant inheritance or bequest to a minor can name a guardian (tutor) to manage that property (Art. 129). This is useful, for example, if a grandmother wants to leave something to a grandchild and prefers that an aunt manage it rather than the child's father.

The guardian also has limits. The guardian needs prior court authorization to divide the inheritance and to sell real estate or personal property worth more than $2,000 (Art. 165).

Plan ahead. If you have young children, your will is the place to put in writing your wishes about who should manage what they inherit. See how to make a will.

When a parent inherits together with the children

This is the most common situation, and also the least clear. In the example, Carmen is an heir at the same time that she represents her children. In a partición (division of the estate), what is allotted to her can reduce what is allotted to them.

What the Code says. The 2020 Civil Code requires court authorization for parents to sell or encumber a minor's property (Art. 632) and for a guardian to divide an inheritance (Art. 165). But it contains no general rule requiring the appointment of a court-appointed representative (defensor judicial) when a parent and a minor are co-heirs. Art. 627(b) presumes opposing interests only when the parent was disinherited or is unworthy.

What happens in practice. In these cases, the court is often asked to appoint a defensor judicial, that is, a person who represents only the child's interests in that procedure. The procedural rules that govern this are outside the Civil Code. Because the Code has no clear rule, we recommend consulting an attorney before signing a division of the estate that involves minors.

Other resources for minor children

Unmarried children under 18, or 18 and 19 if they are still in elementary or high school, may be entitled to Social Security survivor benefits. See Social Security and pensions after a death.

CaudalRelicto.com is an independent guide. It is not Puerto Rico's Departamento de Hacienda, the courts or any government agency. This page is general information, not legal advice from an attorney who knows your case. Names and figures in examples are hypothetical. Found an error? Tell us.