Talking about death and its effects on assets is never easy. Beyond the human aspects that accompany these processes, estate, inheritance, and tax planning often become a challenge for families and their advisors. Upon death, the estate is no longer available for sale or transfer until the succession of the deceased is defined. This, coupled with high costs, paperwork, and, in many cases, tensions between heirs, has led more and more families to seek to implement planning mechanisms during their lifetime that allow them to optimize tax effects, maintain control of their assets, and reduce the risk of future conflicts.
Among these mechanisms is the contribution of real estate to a company, a concept analyzed in detail by Aroca Vives Abogados in the October 2025 issue of this magazine. This scheme offers significant tax benefits, but its design must comply with the limits of the Colombian inheritance regime, regulated in Book Three of the Civil Code.
To illustrate the relevance of this issue, it is worth revisiting the case decided in the first instance on November 6, 2025, by the Commercial Procedures Directorate of the Superintendency of Companies (file No. 2024-800-00094). This ruling represents a milestone in asset management and estate planning, as there had previously been no decisions declaring private acts null and void on these grounds. From now on, it is clear that all planning of this nature must respect the order of succession and the strict inheritance rights established by law in order to avoid subsequent disputes or challenges.
The case involved a large family in which the father had passed away, and the mother—elderly and with cognitive impairment—had granted a general power of attorney to two of her children. Three years later, these two children, together with three other siblings, formed a company. The day after its incorporation, the attorneys-in-fact contributed the mother’s most valuable assets to the company, assigning them a very high share premium and issuing only a small number of shares. Less than a week later, the mother, acting through her attorneys-in-fact, transferred all of her shares to her children, who thereby became the sole administrators of her estate. To ensure her continued use of the properties, a lifetime loan agreement was executed in her favor.
The company did not generate income, and the expenses associated with managing the assets were covered by the shareholders themselves, who became creditors of the company. Their justification was that the structure facilitated the management of their mother’s assets, simplified future succession, avoided conflicts, reduced legal costs, and optimized the tax burden.
Faced with this situation, the non-shareholder children realized that their mother’s estate no longer belonged to her and filed a lawsuit before the Superintendency of Companies against their siblings. They requested the lifting of the corporate veil and the annulment of the partnership agreement, the capitalizations, the appraisal, and the family protocol, alleging that all of this constituted fraud against inheritance rules, which require at least half of the estate to be distributed among the compulsory heirs.
The Superintendency concluded that the company had indeed been used to circumvent the legal restrictions of the compulsory inheritance regime, to the detriment of the non-shareholder legitimate heirs. Accordingly, it declared the absolute nullity of the fraudulent acts carried out through said company, particularly the contribution in kind of the mother’s assets and the transfer of her shares.
To reach this decision, the Superintendency identified several indications that gave rise to this situation: (i) the existence of a prior family conflict, (ii) the use of a general power of attorney to contribute assets to a company composed only of some of the children, (iii) the absence of a genuine economic purpose, (iv) the deliberate exclusion of the other siblings, (v) the lack of a profit motive in the company, (vi) the creation of debts in favor of the shareholders, and (vii) the absolute control exercised by the managing partners through a family council that prevented the participation of the others.
In conclusion, any estate and inheritance tax planning scheme must respect the limits imposed by the Colombian inheritance regime. Based on this ruling, it is clear that schemes which, under the guise of administrative or tax efficiency, unduly affect the rights of heirs may be subject to nullity and may also trigger complex litigation, higher costs, and deeper family rifts than those originally intended to be avoided. Therefore, their design and implementation must be carried out with special care.