Open will in Costa Rica: what it is and when it is the right choice

What an open will is, and why it is called that

An open will is one whose contents are made known in front of everyone taking part in the act: the notary and the witnesses hear or read what you are disposing of. That is what "open" means. It does not mean that it is published, nor that your family is notified; nor does it mean that it is a secret document. Further down we explain precisely what is recorded and who can look it up, because there is a great deal of wrong information circulating on that point.

It is the opposite form to the sealed will, where you hand over a sealed envelope and not even the notary knows what it says inside. In the open will the notary does know the contents, and that, which at first sight sounds like a disadvantage, is exactly what makes it safer: there is a professional checking that what you want to say is said in a valid way.

The open will is governed by articles 583 and following of the Civil Code of Costa Rica (Law 30 of 1885, as amended).

There is something worth understanding from the outset: a will is a solemn act. The law is not satisfied with knowing what your wishes were; it demands that those wishes have been expressed in exact forms. If one of them is missing, the whole will collapses, however clear the intention may have been. The courts have said it plainly: the formal requirements exist to surround the act with guarantees of seriousness, freedom and authenticity.

That is why the matter of the witnesses, which sounds like a simple formality, is in fact one of the points where the validity of the will is most at stake.

The two ways of executing an open will

Many people do not know that the Civil Code allows two routes. Article 583 provides that an open will may be executed:

1. Before a notary and three witnesses. If you are the one who writes the will out in your own hand, two witnesses and the notary are enough.
2. Before witnesses, with no notary: four witnesses if you write it yourself, or six if you do not.

The first route is what is called the authentic or notarial open will: it is made before a notary, it stays in their protocol book and it carries public faith, that is, authenticity as a public instrument. The second is the non-authentic open will, made among witnesses alone.

Making a will with no notary sounds practical. In practice it carries a high cost that your family pays: that will has no public faith, it is recorded in no protocol book, and once you are gone your heirs will have to ask a court to prove it, producing the document and bringing the witnesses in to testify. If by then a witness has died, has left the country or does not remember the act clearly, the problem lands in your heirs' hands. That is why the notarial route is the advisable one except in exceptional situations.

There is also the privileged open will (article 586), designed for soldiers on campaign and for people at sea, which is executed before two witnesses and a commander, officer or captain. It is only valid if the testator dies during that situation or within the following thirty days. It is an emergency device, not an alternative for most people.

The formalities that cannot be skipped

Article 585 of the Civil Code sets the formalities of the open will. There are four of them and not one is decorative:

1. The full date. The place, day, hour, month and year of the execution of the will have to be stated. The hour matters: if there were two wills from the same day, it is what makes it possible to know which one came last.
2. Reading. The will has to be read out before the witnesses, whether by the testator, by the person they designate or by the notary. If the testator is deaf and can read, they have to read it themselves; if they cannot, they designate someone to read it in their place.
3. Signatures. The testator, the notary and the witnesses have to sign it. If the testator does not know how or is unable to sign, that has to be stated in the will itself, and at least two witnesses have to sign (in the will made before a notary) or three (in the one made before witnesses alone), recording who did not sign and why.
4. A single, uninterrupted act. Every formality has to be carried out one after another, with no interruption. You cannot sign today and bring the third witness along tomorrow.

The single, uninterrupted act is the one that catches people most by surprise. It is not a whim: it is what makes sure nobody left the room to put pressure on the testator between one signature and the next.

And the breach is punished in earnest. There is a ruling from our courts that upheld the absolute nullity of a will because it was executed before a notary with only two witnesses, when the law required three. There was no argument about whether the deceased's wishes were clear: a witness was missing, and the will was worth nothing. The estate was handled as if that person had never made a will at all.

That is the difference between a will made by a professional who conducts the act and one made any old way.

The witnesses: how many and, above all, who is barred

The witnesses to a will are subject to the rules on attesting witnesses (article 589 of the Civil Code), which articles 41 and 42 of the Notarial Code develop. In short: they have to be of legal age, able to read and write, and free of any legal impediment to acting as such.

The impediment is the blind spot. Nobody with a direct or indirect interest in the act may be a witness, and neither may the spouse, siblings, ascendants or descendants up to the second degree of consanguinity or affinity, of the notary as much as of those executing the act.

Translated: almost everybody's instinct, "I will put down my sister and my son-in-law, they are people I trust," is precisely what has to be avoided. It is exactly because they are close to you or to your heirs that they are disqualified. Our courts have had to rule on challenges to wills because one of the witnesses was the spouse of one of the people named as an heir.

It is a mistake that comes to light when there is no longer any way to put it right. That is why, in practice, the qualified witnesses are provided by the firm or by the notary's office, not by the family. The detail of who may and who may not is in witnesses for a will.

Open will against sealed will: the honest comparison

This is the real decision in front of you. First the summary, then the explanation.

The sealed will, governed by article 587, works like this: you present the closed envelope to the notary, who draws up a deed recording that you were the one who handed that will over, how many sheets you say it has, whether it is written and signed by you, and whether it carries any crossings-out or amendments. On the envelope the notary enters a note with the place, the hour and the date, and the number, the volume and the page of the protocol book. The deed and the note are signed by the testator, the notary and two attesting witnesses. And then the envelope is handed back to you.

That is where the problem lies. The notary attests that you handed over an envelope; they do not attest to what it says inside, because they did not read it. If inside there is a badly drafted clause or a provision that is impossible to carry out, nobody is going to notice until you are no longer there to fix it. And if the envelope gets wet, is lost in a move or somebody decides it suits them for it never to turn up, the text is nowhere else.

Add to that the fact that the sealed will is not opened until after death, and that opening it means following the procedure the procedural rules establish (article 588). It is one more step, with its own delay, before the succession has even begun.

So when does the sealed will make sense? When the confidentiality of the contents weighs more than everything above: a division that is going to upset somebody close to you, a provision you do not want aired while you are alive. Careful: the sealed will protects the contents, not the existence, because the deed of delivery stays in the protocol book. Those are real cases, but for most situations the disadvantages of the sealed will weigh more than its advantage. The detail is in sealed wills in Costa Rica.

"Does my family find out?" and the other four questions that always come up

Does my family find out what I left? Nobody notifies your family as a matter of course that you made a will. But we are not going to tell you it is secret, because it is not. The Notarial Archive keeps, by law, a register of the wills executed before a notary (article 25 of the Notarial Code, Law 7764), and that register can be searched free of charge in the INDEX system of the Archivo Nacional, Costa Rica's National Archive. On top of that, the Notarial Archive makes available to the public the information on the notarial documents in its custody, and according to the Archive itself, where the notary filed their indexes over the internet, the system allows access to a copy of the wills. In practice, hardly anybody goes looking to see whether a living relative made a will; but if your priority is that nobody should ever be able to learn the contents, you have to know this before you decide, and that is exactly the case where it is worth discussing the sealed will with a lawyer.

Where is it kept? In the notary's protocol book, which in time is deposited in the Notarial Archive of the Archivo Nacional, and it is entered in the register of wills. That is why the notarial will does not depend on somebody finding a piece of paper at your house: it exists even if the copy is lost. When the time comes, your family can find out whether you left a will and before which notary. How that is done is in how to find out whether a person left a will.

Can I change it later? Yes, as many times as you like while you are alive and of sound mind. Under article 621 of the Civil Code, a later will revokes the earlier one in everything that is incompatible, unless you state otherwise. Making a will today does not tie you down: you can adjust it when your life changes. More in changing or revoking a will.

And what if I cannot sign? You can still make a will. Article 585 provided for it: it is stated in the will itself that you do not know how or are unable to sign, and at least two of the witnesses sign, recording who did not sign and why. A tremor in the hand, a recent operation or a condition that stops you holding a pen do not take away your right to make a will.

And what if I do not speak Spanish? That is possible too. To make a will in another language before a notary, the presence of two interpreters chosen by you is required, who translate into Spanish whatever you dictate (article 584).

Capacity: what counts is the moment of the signing

The Civil Code requires capacity to make a will (articles 590 and 591): anyone who is not of sound mind at the moment of executing the will cannot do so validly. It is not a question of having been declared incapable by a judge; it is a question of understanding, at that moment and in that act, what you are disposing of and in whose favour.

There are no magic ages here. The law does not presume that somebody of 90 is incapacitated, nor that somebody of 60 is lucid: capacity is assessed at the exact moment of the signing, and the notary has to judge it when authorizing the act (article 40 of the Notarial Code).

What does change over time is the evidence. When somebody challenges a will for lack of capacity, they have to prove it, and they will go looking for evidence of decline around the date of the signing: diagnoses, hospital admissions, testimony. Our courts have rejected challenges of this kind precisely because no evidence was produced. If you sign at a time when none of that exists, you leave very little material to anyone who wants to fight it. If you wait until a diagnosis turns up, the will may be just as valid, but you are handing somebody something to argue about.

That is why putting it off is not a neutral decision. And if there is already a diagnosis in the picture, tell the lawyer from the start: it does not stop you making a will, but it changes how the act should be prepared. The grounds for a challenge are in annulment of a will.

What the open will does solve, and what it does not

We have to be honest here, because a lot of information on the internet says the opposite.

A will does not avoid the succession proceedings (probate). Your property does not pass to your heirs automatically because you made a will: a succession still has to be processed for it to be awarded. And nor does the will, on its own, bring down the base fees of the succession or of the deed of award, which depend on the value of the estate.

What it does do is take the most dangerous question away from your family: who inherits what. When that is written down, clearly and in legal form, there is far less to argue about, and that reduces the likelihood of a dispute and the length of the procedure, both before a notary and, above all, before the courts. It can also save your family the costs that only appear when there is a fight: a private lawyer for each heir, motions, objections, expert appraisals.

On the succession before a notary, an important clarification: it does not depend on the type of will. The Notarial Code allows a notary to process successions, with a will or without one, provided that no minors and no persons lacking capacity who have to be represented appear as interested parties (article 129), and the notary has to suspend the procedure and pass it to the court if opposition or a dispute arises (article 134). In other words: if among your heirs there is a grandchild who is a minor, or if somebody objects, the notarial route closes, whether you made a will or not.

Where the type of will does make a difference is at the start. The sealed one first has to be opened through the procedural route (article 588 of the Civil Code), and the open one made before witnesses alone has to be proved before a court. The open will executed before a notary already carries public faith: there is nothing to open and nothing to prove before starting. More detail in notarial succession proceedings and in who inherits when there is no will.

And a limit hardly anybody knows about: in Costa Rica you may dispose of your property freely, but article 595 obliges you to leave the support of your child secured until they come of age if they are a minor, and for life if they have a disability that prevents them from supporting themselves, as well as the maintenance of your parents and of your spouse for as long as they need it. If the will does not do that, it is not voided: what happens is that your heirs only receive whatever is left after setting aside what is needed for that support, in the amount determined with expert assistance. And if those people have enough property to support themselves when you die, the obligation does not apply. This subject is developed in can I leave my inheritance to whoever I want?.

When the open will is not enough for you

For most people, the open will is the complete answer: if you have a house, a car and some savings, and you want to make it clear who gets what, this is all you need. There is nothing more to buy.

There are profiles, though, where a will, open or sealed, falls short, because the problem is not saying who inherits but how the transfer happens:

• You have a business or an interest in companies, and the operation cannot be left frozen while a succession is resolved.
• You have several properties, or property outside Costa Rica, where another set of laws governs.
• You have a child or dependent with a disability who is going to need administration for life, not a sum handed over all at once.
• Yours is a blended family and you already know the division is going to cause friction.
• You want your property not to have to go through a succession.

In those cases the conversation shifts from "making a will" to estate planning: trusts, the ownership structure of the assets, a plan for the business, liquidity to cover the costs of the succession, provision for incapacity. The will is still part of the plan, but it stops being the whole plan. It is explained in estate planning and in trust against will.

If your case is the first one, you need none of that. If it is one of the other five, it is worth having a lawyer look at it before you sign a will that perhaps does not solve what you think it does.

What it costs and how it is done

The official Fee Schedule for the Professional Services of Lawyers and Notaries sets a minimum fee of ₡121.000 for drawing up an open or a sealed will, to which VAT is added; that is the price of the deed at testamento.cr. It is not an amount each notary makes up: in 2022 the Executive Branch tried to turn those rates into mere references, but the Tribunal Contencioso Administrativo, the administrative law court, annulled that decree in 2024 and the Sala Primera of the Supreme Court upheld the annulment in 2025. Optional services are charged separately, each with its own price: the notary travelling out to wherever you are, the witnesses provided by the firm, the emergency will and the will in English. The full breakdown is in how much a will costs.

The process starts with a self-assessment questionnaire: you answer a set of questions and the result shows you where your estate plan stands and what you are missing. With that, a lawyer contacts you, goes over your case and tells you whether yours can be settled with an open will or needs something more. Then the notary drafts and sends you a draft that you review, adjust and approve before signing. Nothing is signed in a rush. The step by step is in how to make a will.

Frequently asked questions