ARGENTINA Law and Practice Contributed by: Juan McEwan and Agustín Lacoste, McEWAN
expressed in the deed and where the trustees had no intention of acting on the terms of the trust. 5.2 Mechanism for Compensation As a general principle in succession matters, the Argentine legal system provides that succession pro - ceedings will be governed by the laws of the country in which the decedent was domiciled at the time of their death. If a settlor dies and their last domicile is in Argentina, the CCCN’s forced heirship rules would apply. There - fore, if the trust was created with a view to gratuitously benefiting some of the forced heirs of the settlor (to the detriment of the others), it would be considered a gift to those heirs (made before the death of the decedent) and would therefore go into the accounting of the estate, as its contents and significance exceed those permitted under inheritance law. As seen in 5.1 Trends Driving Disputes , the remaining forced heirs (aggrieved parties) should file a collatio bonorum claim against the trust fund to compensate the other forced heirs of the estate. 6. Roles and Responsibilities of Fiduciaries 6.1 Prevalence of Corporate Fiduciaries The use of corporate professional fiduciaries/trustees is prevalent when planning through foreign irrevoca - ble discretionary trusts. When planning through local trusts ( fideicomisos ), it is common to use either an individual trustee or a company owned by the settlor ( fiduciante ) – not a corporate professional fiduciary – which usually gifts the bare ownership of the shares in the company to their descendants, thereby keeping lifetime usufruct over those shares. 6.2 Fiduciary Liabilities Fiduciaries’ protection from liabilities is attained through exoneration/exculpatory clauses and by del - egating power of investment to third-party profession - als (investment advisers). 6.3 Fiduciary Regulation In Argentina, trusts were originally regulated by Title I of the Housing and Construction Financing Law No
24,441 (the “Trusts Law”), which contemplated two types of trusts: • financial trusts ( fideicomiso financiero ), under which the trustee must be a financial entity or a corporation specifically authorised by the Argentine Securities Commission to act as a financial trustee; and • ordinary trusts ( fideicomiso ordinario ), which can be: (a) management trusts ( fideicomisos de adminis - tración ); or (b) guarantee trusts ( fideicomisos de garantía ). However, the CCCN has since amended the Trusts Law. The regulation of trusts is now set out in Chapter 30 of the CCCN (local trusts), which incorporates sug - gestions from legal scholars and case law with regard to certain issues of interpretation and the application of trust law. 6.4 Fiduciary Investment There are no specific provisions related to fiduciary investments in Argentina. 7. Citizenship and Residency 7.1 Requirements for Domicile, Residency and Citizenship Unlike in many other countries, obtaining citizenship in Argentina is relatively straightforward. The first step is to obtain a visa, which will allow a person to live in the country for one year on a temporary residence permit. When the year has expired, the visa can be extended for an additional year. At the end of the second year, the visa can be extended again for another year. At the end of the third year, the person can extend the visa again and receive permanent residency. At this point, they will be legally entitled to reside in Argen - tina permanently. Two years after receiving permanent residency, they may apply for citizenship. The children of an Argentine father or mother (regard - less of whether native or by choice) who were born abroad also have the right to acquire Argentine nation - ality, regardless of their age, even when the Argentine father or mother has passed away. Those who cannot
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