Your US Will Is Not Enough: What Every Expat in Ecuador Must Know

We have helped hundreds of American and Canadian families settle in Cuenca over the past 25+ years. The question we hear too late, more often than any other, is: "Doesn't my US will cover everything?"

It does not. Ecuador is a civil law country. Its inheritance framework operates on fundamentally different principles than the common law system in the United States. If you own property in Ecuador -- real estate, vehicles, bank accounts, investments -- your US will has no automatic legal force here.

This is not a technicality. It is a structural problem that, left unaddressed, can cost your family years of legal proceedings and tens of thousands of dollars.

The Homologation Problem: Why Your US Will Stalls in Ecuador

For a US will to have any effect on assets located in Ecuador, it must go through a judicial process called homologacion (homologation) -- the formal recognition of a foreign legal document by an Ecuadorian court. This process is governed by Articles 102-106 of Ecuador's General Organic Code of Procedures (COGEP).

Here is what homologation involves in practice:

• Filing before the Provincial Court in the jurisdiction where the assets are located
• Proving the will's authenticity through apostille, certified translation, and legal certification
• A judicial review to confirm the will does not violate Ecuadorian law -- including forced heirship rules (more on that below)
• Timeline: 12 months or more, depending on court backlog and procedural complexity
• Cost: several thousand dollars in legal fees, translation, and court costs

During this entire process, your Ecuadorian assets are effectively frozen. Your spouse or heirs cannot sell property, access bank accounts, or manage the estate. We have seen families wait 18 months or longer.

The alternative is straightforward: execute a valid Ecuadorian will while you are alive. It costs a fraction of what homologation costs and takes effect immediately upon death.

Forced Heirship: Ecuador Decides Who Gets Your Assets

This is the rule that catches most expats off guard. Under Ecuador's Civil Code, you cannot freely distribute your entire estate. The law mandates a division into three portions, commonly called the system of legitimate heirs:

• 50% (Legitima Rigorosa): Must be divided equally among your forced heirs -- your children, or if you have no living children, your parents. You have zero discretion over this half.
• 25% (Cuarta de Mejoras): Must go to your descendants (children, grandchildren), but you choose how to divide it among them. You can give it all to one child or split it as you see fit.
• 25% (Cuarta de Libre Disposicion): Freely disposable. You can leave this to anyone -- a friend, a charity, a non-family member, a spouse who is not otherwise a forced heir.

This means that at most, you control 25% of your Ecuadorian estate freely. If you have children, 75% of your estate is locked into family distribution by operation of law. Your US will, even if it says "everything goes to my spouse," cannot override this. An Ecuadorian judge will not homologate a foreign will that violates forced heirship rules.

If you have no children and no living parents, the restrictions relax considerably. But for the majority of expats with families, this is a mandatory framework.

Important note about spouses: Ecuador's forced heirship does not automatically include the surviving spouse as a forced heir in the same way US law protects a surviving spouse. However, under the sociedad conyugal (marital property regime), the surviving spouse already owns 50% of community property outright. Only the deceased spouse's 50% share enters the inheritance calculation. This is a critical distinction that requires careful planning, especially for blended families.

Two Types of Ecuadorian Wills

Ecuador recognizes two main types of solemn wills for residents. Both must be executed before an Ecuadorian Notario Publico:

Testamento Abierto (Open Will)

This is the standard and recommended form. The testator declares their wishes openly before a Notary Public and witnesses. The Notary verifies mental capacity and free will, ensures all legal requirements are met, and records the will as a public deed (escritura publica). It is transparent, harder to contest, and immediately accessible after death.

Cost in Cuenca (as of 2025-2026): Typically $250-$500 USD for a standard estate, depending on complexity. Legal counsel fees for drafting are additional.

Testamento Cerrado (Closed/Sealed Will)

The contents are kept secret -- sealed in an envelope, signed on the outside by the testator and witnesses, and deposited with the Notary. It is not opened until after death. While it offers privacy, it introduces procedural risk: if the seal is broken or formalities are not perfectly followed, the will can be invalidated.

Our recommendation: The testamento abierto. In over 25 years of practice, we have seen far fewer disputes and complications with open wills. The transparency is a feature, not a drawback.

Posesion Efectiva: How Assets Actually Transfer

Even with a valid Ecuadorian will, your heirs must complete a process called Posesion Efectiva to formally receive the estate. This is a notarial proceeding (not a court proceeding, which makes it faster) that:

• Formally establishes the identity and status of the heirs
• Requires the death certificate (apostilled if the death occurred abroad), proof of heirship, and an inventory of Ecuadorian assets
• Results in a public deed that is registered with the local Property Registry
• Legally transfers title to the heirs

If your heirs are abroad and cannot travel to Ecuador, a Special Power of Attorney (Poder Especial) can authorize a local attorney to handle the entire process on their behalf. We do this regularly.

With a valid Ecuadorian will in place, Posesion Efectiva is a straightforward process measured in weeks. Without one, your family is looking at the homologation route -- measured in months or years.

Why Your US Revocable Living Trust May Cause Problems

Many American expats arrive in Ecuador with a revocable living trust as the centerpiece of their US estate plan. This is a solid tool for US assets. But in Ecuador, it can create serious complications.

Ecuador is a civil law country. The trust, as understood in US and UK common law, has no direct equivalent in Ecuadorian law. Specific problems include:

• Non-recognition: Ecuadorian courts and registries may not recognize a US trust as a valid ownership structure for local assets. Attempting to title Ecuadorian property in a US trust can create registration problems.
• Forced heirship conflict: A trust distributes assets according to its terms, not according to Ecuadorian forced heirship rules. An Ecuadorian court could view trust distributions as an attempt to circumvent mandatory heir protections.
• Tax treatment uncertainty: The creation of a revocable trust may be treated differently for tax purposes in Ecuador than in the US, with potential gift tax or other implications.

The practical rule: Keep your US trust for US assets. Create a separate Ecuadorian will for Ecuadorian assets. Do not try to put Ecuadorian property into a US trust structure without specific legal advice from attorneys licensed in both jurisdictions.

IRA, 401(k), and Beneficiary Designations: A Cross-Border Gray Area

US retirement accounts (IRAs, 401(k)s, Roth IRAs) pass by beneficiary designation, not by will. The named beneficiary on the account receives the funds regardless of what any will says. This is well-established US law.

The question expats ask is: can Ecuador's forced heirship rules reach my US retirement accounts?

The short answer: US-situs retirement accounts are generally governed by US law and pass by beneficiary designation. Ecuador's forced heirship rules apply to assets located in Ecuador. Your IRA at Fidelity or Schwab is a US-located asset.

However, there are nuances:

• If you die domiciled in Ecuador, there is a theoretical argument that forced heirs could claim a share of worldwide assets. In practice, enforcement against US-held accounts is extremely difficult, but the legal risk exists.
• Louisiana, the one US state with forced heirship, explicitly excludes retirement accounts from forced heirship calculations. Ecuador's code does not have a comparable exclusion.
• The safest approach: Ensure your US beneficiary designations are current and consistent with your overall estate plan. Coordinate with both your US estate attorney and your Ecuadorian attorney to minimize conflict.

Power of Attorney: Plan for Incapacity, Not Just Death

Estate planning is not only about death. If you become incapacitated in Ecuador -- a stroke, an accident, advanced dementia -- who manages your affairs?

A US Power of Attorney has the same recognition problem as a US will. It requires homologation to be used in Ecuador, and that process takes time you may not have in a medical emergency.

You need an Ecuadorian Poder Especial (Special Power of Attorney) executed before an Ecuadorian Notary. This can authorize a trusted person to:

• Access your Ecuadorian bank accounts
• Make medical decisions
• Manage or sell property
• Handle legal proceedings on your behalf

We strongly recommend executing this alongside your Ecuadorian will. The cost is modest. The protection is substantial.

The Cross-Border Coordination Problem

The fundamental challenge for expats is that you need two estate plans that work together:

1. A US estate plan (will, trust, beneficiary designations, powers of attorney) covering US-situs assets, governed by US law
2. An Ecuadorian estate plan (testamento abierto, poder especial) covering Ecuadorian-situs assets, governed by Ecuadorian law

These two plans must not contradict each other. A US will that says "I leave everything to my spouse" and an Ecuadorian will subject to forced heirship need to be drafted with awareness of each other.

This requires coordination between your US estate attorney and your Ecuadorian attorney. Not all US attorneys understand civil law systems, and not all Ecuadorian attorneys understand US trusts and beneficiary designations. You need professionals on both sides who have handled cross-border estates before.

What Happens If You Do Nothing

We have seen this scenario play out too many times:

1. An American expat in Cuenca passes away with only a US will
2. The surviving spouse discovers the US will has no legal effect on Ecuadorian property
3. Homologation proceedings begin -- minimum 12 months, often longer
4. If the US will violates forced heirship, the Ecuadorian court modifies or rejects distribution terms
5. Bank accounts are frozen. Property cannot be sold. The surviving spouse is in legal limbo in a foreign country.
6. Legal fees accumulate. Family disputes may arise, especially in blended families where forced heirship gives rights to children from prior marriages.

All of this is preventable with a few hours of legal work and a modest investment.

What We Recommend

After 25+ years handling expat estate matters in Cuenca, here is our standard recommendation:

1. Execute a Testamento Abierto before an Ecuadorian Notary, drafted by an attorney who understands forced heirship and your specific family situation
2. Execute an Ecuadorian Power of Attorney for financial and medical decisions
3. Coordinate with your US estate attorney to ensure your US plan and Ecuadorian plan work in tandem
4. Review both plans every 3-5 years or after any major life event (marriage, divorce, new child, major asset purchase)
5. Keep your US beneficiary designations current on retirement accounts, life insurance, and any transfer-on-death accounts
6. Do not attempt to title Ecuadorian property in a US trust without specific cross-border legal advice

Keep reading:

• Legal Checks Before Buying Property in Ecuador
• Ecuador Tax Advantages for US Retirees
• Guide to Ecuador Residency

Need help with estate planning in Ecuador? Schedule a consultation or call 651-621-3652.