Closed will in Costa Rica: how it works and who it is for

What exactly a closed will is

In Costa Rica you cannot invent the form of your will. The Código Civil (the Civil Code) recognises two ordinary forms, the open will and the closed will, plus two privileged ones for exceptional situations: the military will and the maritime will. Outside that list nothing is valid. An audio recording will not do, nor a video, nor a document signed at home with two neighbours as witnesses. The form is part of the act, not an added formality.

The closed will is governed by article 587 of the Civil Code. Its defining feature is easy to grasp and has enormous consequences: the contents never enter the notarial protocol (the notary’s official register). What enters the protocol is the record that you presented a sealed envelope and told the notary your will is inside it.

One clarification before we go on. The Civil Code also allows an open will executed before witnesses alone, without a notary (article 583). Throughout this article, when we say "the open will" we always mean the open will before a notary, which is the real alternative for anyone considering a closed one.

The underlying difference is this. With an open will before a notary, the notary knows the contents, drafts them into the protocol, and that volume eventually ends up at the Archivo Notarial (the National Notarial Archive). The document exists in a public, traceable place even if everything you keep at home is lost. With a closed will, by contrast, the paper holding your provisions is handed back to you when the procedure ends, and you take it away. The notary keeps a deed stating that the envelope existed and how it was sealed that day, but not what it says inside.

Two details of article 587 surprise a lot of people:

• A closed will does not have to be handwritten by the testator. Someone else can write it, or it can be typed. What is mandatory is that the testator signs it.
• Anyone who cannot read and write may not make a closed will. The law says so expressly. And it makes sense: if nobody else is going to read what is inside, the only check that the paper says what the person meant is that the person can read it themselves.

So the right question is not "which will is better?" but "what am I willing to take on in order to keep the contents secret?". That is what the closed will buys: complete secrecy of the contents while you are alive. In exchange, you take on custody of the document, and the notary who receives it does not review what it says. If you want someone to review it, you have to hire that advice separately.

If what you want is the full comparison between the two forms, criterion by criterion, it is in the open will in Costa Rica. Here we stay with the closed will: how it is made, what happens when it has to be opened, and who it suits.

How a closed will is made, step by step

Everything that follows comes from article 587 of the Civil Code, as amended by the Código Notarial (the Notarial Code, Law 7764 of 1998). This is not interpretation: it is the wording of the rule. And every point on this list is a point where a will can fall apart.

1. Write the will and sign it. The testator may write it or someone else may; it can be handwritten or typed. The testator’s signature, on the other hand, is not optional. Without it there is no closed will.
2. Put it in an envelope and seal it. The testator presents it already inside the envelope, sealed. The notary does not open it, does not leaf through it and does not review it.
3. Present it to the notary in person. The rule requires the testator themselves to hand it over. It cannot be sent with a relative or an attorney-in-fact.
4. Make the statements the law requires before the notary. The testator states how many pages it contains, whether it is written and signed by them, and whether it has any crossing-out, amendment, interlineation or note. Those statements are not red tape. They are what later makes it possible to verify that the envelope being opened holds the same thing that was handed in.
5. The notary draws up the deed in the protocol. There the notary records the presentation and all of the testator’s statements.
6. The notary writes an endorsement on the envelope. That endorsement must state that the envelope contains the will of the person presenting it, the place, the time and the date the deed was executed, and the number, volume and page of the protocol where it is recorded.
7. The notary secures the seal. The law orders the notary to take whatever measures are needed to guarantee that the envelope cannot be tampered with.
8. Four people sign. Both the deed and the endorsement on the envelope are signed by the testator, the notary and two instrumental witnesses.
9. The will is handed back to the testator. And that is where the part almost nobody thinks about begins: custody is now yours.

El testamento cerrado puede no ser escrito por el testador, pero debe estar firmado por él. Lo presentará en un sobre cerrado al notario público, quien extenderá una escritura en la cual hará constar que el testamento le fue presentado por el mismo testador, sus declaraciones sobre el número de hojas que contiene, si está escrito y firmado por él, y si tiene algún borrón, enmienda, entrerrenglonadura o nota. […] Quienes no sepan leer ni escribir no pueden hacer testamento cerrado.

Article 587 of the Civil Code of Costa Rica

A real case of how a closed will falls apart

In a probate proceeding before the Juzgado Civil de Desamparados, a civil court in San José, the will was opened in April 2021 and this is what turned up:

• The envelope that directly held the will bore only the deceased’s signature. It had neither the notarial endorsement nor the signatures of the notary and the witnesses.
• That envelope was inside a larger one, which did carry the notarial endorsement. But that endorsement was missing the signatures of the witnesses and of the deceased.

The court held that article 587 had not been complied with and ordered the estate to be handled as an intestate succession, that is, as if there were no will. The witnesses did acknowledge the deceased’s signature, and even so it was not enough. The applicant appealed to the Tribunal Segundo de Apelación Civil, the second civil court of appeal, which ruled in judgment 542-2021 of 20 August 2021 (case file 21-000123-0217-CI). The court upheld the decision: it held that the omissions concerned formalities required for the validity of a closed will, and it did not change the consequence ordered at first instance.

Beware the easy reading: the problem was not "using two envelopes". The problem was that the formalities of article 587 were not where the law requires them to be. A closed will is made exactly as the rule says, not in whatever way seems safer.

What it costs

The fee schedule for the professional services of lawyers and notaries sets a minimum fee of ₡121.000 for drawing up wills, whether open or closed (article 97 of Executive Decree 41457-JP). That is a floor, not a fixed price. That minimum is still in force: the 2022 decree that sought to remove minimum rates was annulled by the Tribunal Contencioso Administrativo, the administrative law court, and the Sala Primera of the Supreme Court upheld the annulment in 2025.

The two witnesses: who may serve and who you should choose

Article 589 of the Civil Code refers testamentary witnesses to the rules on instrumental witnesses. That takes you to the Notarial Code, which sets the requirements in two articles:

• Article 41: they must be of legal age, able to read and write, and free of any legal impediment.
• Article 42: anyone lacking the physical or mental capacity to bind themselves is absolutely barred. Anyone with a direct or indirect interest in the act is relatively barred. So are the spouse, siblings, ascendants and descendants up to the second degree of blood relationship or affinity, of the notary and of any of the parties alike.

In plain terms: your brother, your child, your son-in-law or your wife cannot serve as witnesses. Neither can anyone who stands to receive something. With a closed will there is also a practical wrinkle, which we explain below.

There is another rule almost nobody hears about. Under article 592, subparagraph 5, of the Civil Code, the notary who authorises the cover of a closed will and the person who writes that cover are relatively incapable of receiving anything from the testator. If you are thinking of benefiting the notary who authorises the cover or the person who writes it, say so beforehand: that provision may be affected by the incapacity the law lays down.

The practical criterion: choose witnesses who can foreseeably be found later on. With a closed will, the witnesses do not know what the document says. But they are the people the court summons on the day it is opened, to acknowledge their signatures. If one of them has died or is out of the country, that does not invalidate the will: the Code of Civil Procedure provides for what to do, such as comparing signatures and taking evidence from those who do appear. Even so, every absence makes the verification slower and more open to argument. Naming two of your contemporaries in a document that will be opened twenty or thirty years from now is a decision worth thinking about twice.

If you want the full detail of who is barred, it is in our article on witnesses for a will in Costa Rica.

What happens on the day it has to be opened

This is the part of the closed will that almost never gets explained, and it is the one that most changes what your family goes through.

Article 588 of the Civil Code says two things: that a closed will is not opened until after the testator’s death, and that opening it follows whatever the procedural law requires. Today that law is the Código Procesal Civil (the Code of Civil Procedure, Law 9342, in force since 2018), in its article 118.

The procedure works like this:

1. Anyone with a legitimate interest applies. Any person claiming a legitimate interest may ask the court to open the closed will.
2. The application goes to the court. It must be filed together with the certified copy of the deed in which the notary recorded the presentation of the envelope.
3. The court calls a hearing. It summons the notary who authorised the deed and the witnesses. It asks them whether they acknowledge their signatures and whether the envelope is in the same condition.
4. The condition of the envelope is placed on record. The court records how it arrived: its seals, its endorsement and any sign of tampering.
5. It is opened and read out. The envelope is opened and the will is read out to those present. Anyone who believes they have an interest may attend that hearing. The court takes whatever measures are needed to ensure there is at least one exact copy of the will.
6. The court rules on validity. If the will is valid, the court so declares and orders the estate opened as a testate succession. If it is not, the estate is handled as an intestate succession: the law distributes it, not you.

There are three consequences worth being clear about before you decide.

First: there is a court stage that an open will before a notary normally does not need. Even if your family is in perfect harmony and nobody disputes anything, a closed will forces a trip to court to open it. Opening it is not something a notary can do. That does not mean the whole probate has to stay in court. Once the will has been opened and declared valid, the proceeding may continue before a notary provided there are no minors or legally incapable parties involved, there is no opposition or dispute, and the other legal requirements of that route are met. The Dirección Nacional de Notariado, the national notarial authority, has expressly distinguished between opening a closed will — reserved to the courts — and the later handling of a testate estate before a notary where that is available.

Second: the secrecy ends at the opening hearing. For your whole life nobody knew what it said. That day it is opened and read out to those present, and anyone who considers themselves interested may attend. There is no private reading beforehand for your family.

Third: it is extra time and extra money. The opening procedure happens before the probate proceeding, not instead of it. After it is opened, the entire probate is still ahead of you before the assets are awarded.

If you are not clear on what probate is and how much it weighs, read judicial probate in Costa Rica.

The real advantages of the closed will

They are not decorative. For a certain kind of person they solve a problem the open will does not solve.

Complete secrecy while you are alive. This is the parent advantage, and all the others come from it. Neither the notary, nor the witnesses, nor your family knows what you decided. Sometimes the split is uneven: the child who stayed in the business and the one who left, the stake that goes to the partner rather than the heirs, the legacy to someone who is not in the family photo. In those cases the secrecy buys something concrete: that the decision does not cost you twenty years of tension while you live.

It keeps the information from changing how people behave. In a family business, knowing in advance who ends up with control alters the alliances, the conversations and sometimes even the numbers. A split that is known now is a split that starts being negotiated now.

Absolute control over who knows the contents. You can have it drafted by a lawyer you trust, and the notary who receives the envelope need have no idea what is inside. You decide exactly how many people in the world know.

It allows a long, detailed document. Instructions on the succession of the business, personal reasons, guidance for an executor: all of that can be written at length, without being recorded in a notarial protocol.

It can be changed like any other will. A closed will does not tie you down: you can revoke it in whole or in part with a later will (article 621 of the Civil Code). But watch out for a detail almost everyone misreads. If the new will does not mention the earlier one, it revokes only the part of it that is contrary (article 622), and the rest stays in force. If you want the earlier one set aside entirely, the new one has to say so.

That said, none of these advantages is free. They are all paid for with what comes in the next section.

The risks nobody mentions to you

1. Custody is yours, and so is the risk. The original is handed back to you when the procedure ends. If it is lost, soaked, burned or simply disappears, there is no copy. With an open will before a notary you can always ask the notary or the National Notarial Archive for another certified copy. Not with a closed one, because the only original is the one handed back to you. That makes it easy to take or destroy. Put plainly: the person your will harms could have physical access to the only copy in existence.

2. The notary who receives the envelope does not review the contents. With an open will before a notary, the notary does more than attest: they advise on how the intention is legally formed, and they draft it. With a closed will, that review does not happen at the time. It exists only if you separately hired a lawyer to draft it. Without that advice, you can leave mistakes like these:

• an ambiguous division;
• two clauses that contradict each other;
• assets you have already sold;
• an executor who cannot accept the appointment;
• provisions that clash with the maintenance obligation in article 595 of the Civil Code.

Without prior legal review, those mistakes can go unnoticed until the opening, when there is no longer anyone to clarify what the testator meant.

3. The formalities are met or the will falls. In testamentary matters form is substance, and leaving out essential formalities can stop a will from being declared valid. The courts have qualified that principle case by case, but do not count on that flexibility as a strategy. More detail in when a will can be annulled.

4. Verification rests on people. On the day of the opening the notary and the witnesses are summoned. If they have died, left the country or simply do not turn up, the procedure gets complicated and it becomes necessary to fall back on signature comparisons and other steps. A will executed at 50 is opened, with luck, thirty years later.

5. The risk is asymmetrical, and that is the serious part. If the closed will does not pass verification — because of form, because it was lost, because of anything — the court orders the estate to be handled as an intestate succession (article 118.4 of the Code of Civil Procedure). The law distributes it in its own order, not you. And notice the trap. People who choose a closed will usually do so precisely because they want to depart from the legal order: to protect the partner they never married, to recognise the person they raised, to leave control of the business to whoever holds it up. That is exactly the person who loses most if the document does not reach the opening hearing intact and properly made. You can see exactly what would happen in who inherits when there is no will.

None of these risks makes the closed will invalid. What they do is put a price on the secrecy. The honest question is whether, in your case, the secret is worth that price.

So who does it actually suit?

It suits someone with something concrete to keep back. For example:

• the owner of a family business who has already decided who ends up with control and knows that announcing it today would break the operation;
• the person with a second family or a commitment they have not made public;
• someone about to leave a legacy to a person outside the expected circle who would rather not have that conversation while alive.

In those cases the secrecy is not a whim: it avoids a real cost.

It suits you, moreover, only if you solve custody. A closed will kept in a drawer at home is a half-made will. If you go this route, custody is part of the decision, not a detail to settle later: a bank safe deposit box, a clear depositary, instructions on where it is and how to get to it. And those instructions cannot live only inside the envelope.

It does not suit someone with a simple case. A house, a car, a predictable split among children: there a closed will adds paperwork, risk and a court hearing without giving you anything in return. That is what the open will before a notary is for, which leaves the document safely in the protocol. And one fact that dismantles a myth: the closed will is not cheaper. The minimum fee set by the official fee schedule is the same for both, ₡121.000; the extra cost of the closed will comes later, with the court opening. The breakdown is in what a will costs.

If what you want is to keep certain assets out of probate, look at the trust

Here it is worth being precise, because two different things get confused.

The closed will protects the secrecy of the contents while you are alive. What it does not do is avoid the probate proceeding. Quite the opposite: it adds a court procedure in front of it. Your assets follow the same path as with any other will.

The trust (fideicomiso) attacks a different problem. Assets properly transferred into the trust estate stop forming part of the inheritance. When the settlor dies, what the contract says about the beneficiaries is carried out, with no transfer on death of those assets. That can keep them out of probate, with everything that means in time and cost. It is neither automatic nor universal: it depends on which assets are transferred, how they are transferred, and what the contract says. It has its own price — set-up fees and an annual trustee cost — and it makes no sense for every estate.

For someone with several properties, a company or assets in more than one country, the conversation is usually not "open or closed" but "a will plus a structure". In practice they are combined: the trust moves the important assets and the will takes care of the rest. The full comparison is in trust versus will.

Frequently asked questions