Estate Planning With Real Estate in Lima: Wills, Testamentary Trusts, and Inheritance

If you are a Peruvian-American with a penthouse in San Isidro, a beach house in Asia, an apartment in Miraflores you bought 20 years ago, or a portfolio split between Lima Top and Miami or New York, your estate plan needs to do double duty. Peruvian inheritance law is civil-law, with forced heirship rules and notarial formalities that look nothing like a US revocable living trust. The federal estate tax exemption in 2026 sits at US$ 15 million per person under the One Big Beautiful Bill Act, but that has zero effect on the Peruvian side. To move your Lima real estate cleanly to the next generation you need a Peruvian will, smart use of advance inheritance, and possibly a testamentary trust under SBS rules. This guide focuses on the Peru side, with a brief reminder of the cross-border angle, so you and your bilingual family advisors can sit at the same table without surprises.

Table of contents

• Legal framework: Civil Code and forced heirs
• Legitime (2/3) and free disposition (1/3)
• Types of wills under Peruvian law
• Testamentary trust: when it makes sense
• Advance inheritance and tax exemptions
• Intestate succession and heir declaration
• Conventional vs. judicial partition
• Taxes: Alcabala, capital gains, and property tax
• Cross-border considerations: Peru and the US
• FAQ

Legal framework: Civil Code and forced heirs

Book IV of the Peruvian Civil Code (articles 660 to 880) governs the entire inheritance system. Transmission is automatic at death: the deceased’s assets, rights, and obligations pass to their successors instantly. There is no legal vacuum, but there is an administrative window during which no one can sell or mortgage the property until the heir declaration is recorded with SUNARP, the Peruvian public registry.

Article 724 of the Civil Code defines forced heirs: children and other descendants, parents and other ascendants, and the surviving spouse or, where applicable, the surviving member of a recognized cohabiting union. Law 30007 (published in 2013) extended the spouse’s inheritance rights to common-law partners whose union is registered in SUNARP’s Personal Registry. If you are a Peruvian-American living common-law with property in Lima, this single registration step changes everything for your partner.

Order matters. Children inherit alongside the spouse and exclude the parents. Without descendants, parents inherit alongside the spouse. With only a surviving spouse, the spouse takes the entire estate. Knowing where you sit drives every decision about the disposable third and any advance inheritance moves.

Testate vs. intestate succession

Testate succession applies when a valid will exists. Intestate succession applies otherwise. For high-value Lima real estate, leaving the transmission to default rules is rarely the optimal play: heirs receive equal undivided shares with no roadmap for managing or selling the asset, and you forfeit the disposable third you could have allocated freely.

Confirm title and encumbrances on the property registry sheet before drafting your will. Our guide on SUNARP record searches for luxury real estate in Lima walks through the process.

Legitime (2/3) and free disposition (1/3)

Article 723 of the Civil Code defines the legitime as the portion of the estate the testator cannot dispose of freely when forced heirs exist. It is reserved by law and cannot be circumvented with creative drafting.

The shares are:

• With children, descendants, or surviving spouse: two-thirds (2/3) is legitime. Only one-third (1/3) is freely disposable.
• Only with parents or ascendants: half (1/2) is legitime, half is freely disposable.
• Without forced heirs: 100% freely disposable.

A working example. Mr. Reyes, widower with two adult children, owns an apartment on Malecón Balta valued at S/ 4.8 million, a house in La Planicie at S/ 6 million, and an office unit in San Isidro Financiero at S/ 2.2 million. Total: S/ 13 million. The protected legitime is S/ 8.67 million (2/3), split equally between his two children. The disposable third, S/ 4.33 million, can go to a partner, a grandchild, a foundation, or to one of the two children as a “betterment” share.

Betterment and disinheritance

You can “improve” a forced heir within the legitime by allocating a larger portion than their co-heirs, provided the increment comes from the disposable third. Disinheritance is regulated in articles 742 to 755 of the Civil Code and requires a statutory cause (attempt against the testator’s life, serious injury, abandonment, among others) expressly stated in the will. It is not a casual instrument.

Types of wills under Peruvian law

Article 691 of the Civil Code classifies wills as ordinary (public deed, closed, holographic) or special (military, maritime). For meaningful real estate portfolios, only two ordinary forms are realistic.

Public deed will (testamento por escritura pública)

This is the workhorse. It is granted before a notary in the presence of two qualified witnesses, in a single uninterrupted act. Article 696 of the Civil Code lays out strict formalities; breach any of them and the will may be annulled. The notary inscribes it in SUNARP’s Will Registry, guaranteeing existence and public availability. Your heirs locate it later with a simple registry certificate.

Notary fees scale with patrimonial complexity. Detailed wills typically run S/ 1,500 to S/ 8,000 [TO BE VERIFIED: exact tariff per notary office] plus SUNARP registration fees.

Closed will (testamento cerrado)

You write and sign it (or someone signs by your instruction). You seal it in an envelope and hand it to the notary in the presence of two witnesses. The contents stay secret until your death. Useful when you want maximum confidentiality on specific bequests or on how you allocated the disposable third. Its weakness is formality: any defect in the envelope, the delivery, or the witnessing minutes can void it.

Holographic will (testamento ológrafo)

Entirely handwritten, dated, and signed by you. No notary at the moment of granting. After your death, your heirs must have it judicially or notarially “verified,” adding months and opening attack vectors. For high-value Lima real estate, this is rarely the right format.

Testamentary trust: when it makes sense

The Peruvian testamentary trust (fideicomiso testamentario) is governed by Law 26702, the General Law of the Financial System and the Insurance System and Organic Law of the SBS, and SBS Resolution 1010-99, the Trust and Fiduciary Service Companies Regulation. After your death, designated assets transfer to a fiduciary company licensed by the SBS, which administers them for the beneficiaries you named under the rules you wrote.

Typical Lima Top use cases:

• Minor or young-adult children: the fiduciary administers the property, collects rents, and distributes cash flow until the heir reaches a target age or finishes a degree.
• Children with disabilities: the fiduciary secures lifetime resources without compromising the beneficiary’s legal capacity.
• Blended families (second marriages): the surviving spouse holds usufruct on the apartment while bare ownership is preserved for the children of the first marriage.
• Income-producing assets: offices, retail, or rental units that generate cash flow you do not want heirs to liquidate under short-term pressure.

Acceptance by the designated fiduciary or by the beneficiaries is not a validity requirement. If the fiduciary declines, it must propose a substitute; if no company accepts, the trust extinguishes and the assets fall back into the ordinary estate. Important guardrail: forced heirs may demand the return of assets placed in trust gratuitously to the extent they impair their legitime. The rule preserves the legitime’s “intangible” character against aggressive trust structures.

Costs and operators

Authorized fiduciaries include COFIDE, multiple-banking companies, and SBS-licensed fiduciary service companies. Annual fees on private real estate trusts typically range 0.5% to 1.5% of administered value [TO BE VERIFIED: exact range by entity and AUM], plus a structuring fee at inception. For real estate portfolios under S/ 5 million the math rarely justifies the complexity. Above S/ 8 to 10 million, the trust starts to earn its keep as a planning layer.

Advance inheritance and tax exemptions

Anticipo de herencia (also called anticipo de legítima) is a lifetime transfer of one or more assets to a forced heir, on account of their future inheritance share. It is granted by public deed and recorded in SUNARP for real estate. The tax appeal:

• Alcabala (transfer tax) exemption: transfers by advance of legitime do not generate Alcabala under the Consolidated Text of the Municipal Tax Law (Supreme Decree 156-2004-EF).
• No Second-Category Income Tax (capital gains): assets acquired as advance inheritance are not taxable as income for the donor. SUNAT confirmed this in Report 044-2021-SUNAT/7T0000.

This combination makes the advance inheritance a powerful tool to shrink the future taxable estate, simplify probate, and move wealth across generations without double taxation. If your child is going to receive the San Isidro apartment eventually anyway, advancing the transfer eliminates several post-mortem steps.

Reservations and burdens

You can advance with a lifetime usufruct reservation: you transfer bare ownership but retain the right of use, habitation, or rent collection until your death. This is the classic move for Lima Top owners who want to lock in the asset for their children without losing income or control during their lifetime. If the asset is community property under marital regime, your spouse’s consent is required.

To understand how Alcabala works on regular transfers and why advance inheritance bypasses it, see our guide on the Alcabala tax for high-value properties.

Collation

Article 831 of the Civil Code requires collation: gifts to forced heirs are treated as advance inheritance and must be brought back into the common estate at death, unless the testator expressly waived collation. The waiver only operates up to the disposable third’s limit. For that reason most advance inheritance deeds include a waiver clause to prevent the asset from “returning” notionally to the estate when the donor dies.

Intestate succession and heir declaration

Without a will (or with a will that is void, expired, or partial), heirs file an intestate succession petition for a judge or a notary to formally declare them heirs. Law 26662, the Notarial Competence in Non-Contentious Matters Law, article 1 section 6, authorizes the notarial route when interested parties agree.

Notarial route, step by step

1. File petition with the notary, attaching death certificate, birth or marriage certificates evidencing the link, and SUNARP certification confirming no prior will or proceeding.
2. Publication of notice once in the official gazette and in a major newspaper, opening a 15-business-day window for opposition.
3. If no substantiated opposition is filed, the notary issues a deed declaring the heirs.
4. The notary submits the parties to SUNARP for registration in the Intestate Succession Registry.

Law 32377, published in 2025, streamlined the procedure by rejecting unsupported oppositions. Even so, the full process typically takes 60 to 120 days. If heirs disagree or a new heir surfaces, the case moves to court and the timeline shifts from months to years.

SUNARP recording

Once heirs are declared, the succession must be recorded on the property’s registry sheet. Until that happens, no one can sell, mortgage, or encumber the asset. For high-value real estate the lag in recording is the number-one driver of lost sale opportunities and discount demands from buyers who discover the unresolved estate.

Conventional vs. judicial partition

After heir declaration, heirs sit as co-owners of the estate. Each holds an aliquot (an ideal share, not specific physical portions). To assign concrete assets to each heir you must partition.

Conventional partition

Article 853 of the Civil Code requires a public deed when all heirs are capable and agree, and when the partition involves real estate registered with SUNARP; otherwise, a private document with notarized signatures suffices. The public deed is recorded with SUNARP and binds with definitive effect.

In Lima Top, partition is rarely a clean equal split among identical assets. One heir takes the house, another takes the apartment, another takes cash or securities. To balance values heirs use cash equalization payments (“uneven lots with compensating balances” in legal language). Objective appraisals and an external mediator usually pay for themselves several times over.

Judicial partition

When an heir refuses, disappears, or is incapacitated without authorized representation, any interested party can sue for partition. The court orders appraisals, hears positions, and rules on the physical partition or auction sale where assets are not comfortably divisible. The process can run 3 to 7 years. Court and expert fees often consume 5% to 10% of the disputed estate’s value [TO BE VERIFIED: average range in Lima civil courts].

Avoiding this is what a well-built will accomplishes: it specifies which asset goes where, names an executor, allocates betterment, and where appropriate sets up a testamentary trust to administer assets until the heirs can divide in peace.

Taxes: Alcabala, capital gains, and property tax

Alcabala (transfer tax)

The Consolidated Text of the Municipal Tax Law (Supreme Decree 156-2004-EF) imposes Alcabala at 3% on onerous real estate transfers, with a 10 UIT non-taxable bracket. For 2026 the UIT is set at S/ 5,500 (Supreme Decree 301-2025-EF), so the non-taxable bracket equals S/ 55,000. The premium news: transfers by inheritance and by advance of legitime do not generate Alcabala. Zero. This is a structural carve-out, not a temporary discount.

Second-Category Income Tax (capital gains)

If an heir later sells the inherited property, capital gains tax applies (5% on the gain), unless it is the heir’s primary residence held continuously for five or more years. SUNAT, in Report 044-2021-SUNAT/7T0000, clarified that the cost basis of an asset acquired by inheritance or advance is the original acquisition cost of the deceased, not the fair market value at death. This rule can produce hefty tax bills when a property is sold that the parent purchased 30 years ago at a now-tiny price. Planning matters.

Property tax (Impuesto Predial)

The municipal property tax follows the asset. Until the succession is recorded with SUNARP, the property tax bill stays in the deceased’s name and the heirs are jointly liable. Late penalties accumulate quickly when families delay updating ownership. Record the succession.

Cross-border considerations: Peru and the US

For Hispanic-American families with property in both jurisdictions, the planning conversation has two channels.

On the US side, the federal estate tax exemption rises to US$ 15 million per individual and US$ 30 million per married couple in 2026 under the One Big Beautiful Bill Act. The annual gift tax exclusion is US$ 19,000 per recipient. Step-up basis at death survives, meaning heirs inherit assets at fair market value as of the date of death, eliminating built-in gains. Revocable living trusts continue to be the standard tool for avoiding probate.

On the Peru side, there is no federal estate tax and no step-up basis. Forced heirship rules apply to all real estate located in Peru regardless of the owner’s residence (lex rei sitae). A US revocable living trust does not “skip” Peruvian forced heirship for Lima property; you still need a Peruvian will or testamentary trust to coordinate the transmission cleanly.

The right structure varies. Common patterns we see for Peruvian-American owners include a US revocable trust for US-situs assets, a Peruvian public-deed will for Lima real estate, advance inheritance for assets you are confident will go to a forced heir, and a Peruvian testamentary trust when income-producing real estate must keep producing post-mortem. Your bilingual advisors must talk to each other.

FAQ

Do I need a will if I only own one apartment in Lima?

It depends on value and family situation. An S/ 800,000 unit with one heir may not justify it. An S/ 4 million apartment with spouse, two children, and a possible child from a prior relationship absolutely justifies it. In the Penthouse.pe segment, the answer is almost always yes.

Can I leave everything to my partner if we are not married?

If your common-law union is recognized and registered in SUNARP’s Personal Registry, your partner inherits as a spouse under Law 30007. If not, you can leave them only the disposable third via will, since they are not a forced heir. The difference is enormous. Check your registry status now.

Does a testamentary trust strip me of control?

No. The trust operates only after death. While alive you remain absolute owner. The trust executes your post-mortem instructions, shielding assets from disputes or rash decisions by young or vulnerable heirs.

How long does a notarial intestate succession take in Lima?

If heirs are aligned and documents are complete, 60 to 120 days from filing to SUNARP recording. With opposition, foreign-resident heirs, or missing paperwork, expect six months or more.

Should I gift the property now or leave it via inheritance?

For forced heirs, advance inheritance is the cleanest path: exempt from Alcabala and from capital gains for the donor. A pure gift to a non-forced-heir (third party) consumes the disposable third. The practical rule: for property that will end up with the forced heir anyway, advance the transfer.

Can I disinherit a child who abandoned me?

Yes, but only on causes listed in articles 742-755 of the Civil Code, expressly stated in the will. “We are no longer in touch” is not enough. The disinherited heir can challenge, and if the cause is not proven, the legitime is restored.

I have assets in the US and in Lima. What now?

You need plans in both jurisdictions. Lima real estate is governed by Peruvian law (lex rei sitae); US real estate is governed by the relevant state law. US revocable trusts can avoid US probate; in Peru, the testamentary trust and a public-deed will do their part. Coordination between both attorneys is non-negotiable.

Does my common-law partner inherit automatically?

Only if the common-law union is recognized judicially or notarially and registered with SUNARP’s Personal Registry. Without registration, the survivor is not among the forced heirs.

Closing thoughts

Estate planning for your Lima Top portfolio is not complicated, but it does require discipline and good advisors. Combine a public-deed will, selective advance inheritance using the disposable third, a testamentary trust for income-producing assets, and a pre-agreed conventional partition framework with your heirs. The result: fewer lawsuits, lower taxes, and faster access to the patrimony you built.

Rates and pricing notice (H.1)

Rates, prices, and figures cited correspond to May 2026 and may vary. Penthouse.pe is not a financial advisor or bank; before making investment decisions consult your trusted advisor and the SBS-regulated financial entity.

Legal and tax notice (H.2)

This content is informational and does not constitute legal or tax advice. Each particular case must be reviewed by a licensed attorney or accountant. Peruvian regulations may have changed since publication; always verify the latest version at SUNAT, SUNARP, or the corresponding official source.

Official resources

• SUNARP — Peruvian Public Registry
• SUNAT — Peruvian Tax Administration
• MINJUS — Ministry of Justice and Human Rights
• SPIJ — Peruvian Legal Information System

Ready to design your succession plan?

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