How to leave or transfer property to a minor child in Peru

Two paths, not three

There are two real ways for a minor child to end up with property of yours: leave it in your will (nothing happens until you die, and you can change it whenever you want) or donate it while you’re alive (ownership changes now, and generally you can’t take it back). The “anticipo de legítima” people talk about isn’t a third, separate legal instrument — it’s what the law automatically does with any donation you make to a forced heir, and your child is one, as explained below.

Either path, if the recipient is a minor, triggers the rules of patria potestad over that property.

Your child owns it, but you administer it — with a strong limit

Article 418 of the Civil Code sums up patria potestad as the parents’ duty and right to care for the person and the property of their minor children. Article 423 spells it out further: whoever exercises patria potestad represents the child in civil acts, administers their property and has the right to its usufruct.

Administering is not the same as disposing. Article 447 sets a limit that surprises a lot of people:

“Los padres no pueden enajenar ni gravar los bienes de los hijos, ni contraer en nombre de ellos obligaciones que excedan de los límites de la administración, salvo por causas justificadas de necesidad o utilidad y previa autorización judicial.”

In practice: once the property is your child’s, you can no longer sell it, mortgage it or encumber it on your own, even as their parent exercising patria potestad. You need a judge to authorize it, and the judge will only do so for a genuine reason of necessity or benefit to the child — not because it’s convenient for you. The same article lets the judge require a prior appraisal and a public auction sale when the child’s interests call for it.

Donating during your lifetime: what the law requires

If you choose to donate now instead of leaving it in a will, article 1621 defines a donation as the obligation to transfer ownership of property free of charge. For real estate, article 1625 requires a public deed, identifying the property, its real value and the charges the recipient assumes — without that, the donation is void.

And there’s a limit tied directly to forced heirship: article 1629 says no one may donate more than they could leave by will. If you have children, other descendants or a spouse, that limit is your freely disposable third; with only parents or ascendants, it’s half. Anything you donate beyond that is invalid for the excess, valued as of your death. The exact figures and full table are on the forced heirship page.

The anticipo de legítima: why a donation doesn’t clear the ledger

This is the point that confuses people most. Article 831 says that donations received by your forced heirs — your children among them — count as an advance on the inheritance for purposes of being “collated,” unless you dispense with collation.

What does collating mean? In plain terms: when you die, what you donated during your lifetime to that child gets added back to the estate to calculate whether all of your forced heirs received what the law guarantees them. The donation itself isn’t undone — it’s factored into how the rest is split, so the child who received it doesn’t end up with more than they were owed, and the others don’t end up with less than their legítima.

You can avoid this by dispensing with collation, but article 832 sets two conditions: the dispensation must be stated expressly, in your will or another public instrument, and it only applies within your freely disposable portion. You cannot dispense a donation that exceeds that third (or that half).

How to keep using what you’ve already donated

If you want the property to pass to your child now but you’d like to keep living there or collecting its income, the law has a figure for exactly that: usufruct. Article 999 defines it as the power to temporarily use and enjoy someone else’s property, and article 1000 allows it to be created by contract or unilateral act — meaning, in the same donation deed.

The technique is to donate the bare ownership (title, without the use) and reserve a lifetime usufruct for yourself. Your child becomes the owner from signing; you keep using and enjoying the property until you die or renounce that right, at which point the usufruct ends by operation of law and your child holds full ownership (article 1021, subsection 4). It’s the mechanism notaries typically use when someone wants to transfer property early without moving out.

A route that skips collation entirely: life insurance

If what you’re after is leaving a child something without that value entering the split with your other forced heirs, life insurance in their favor is a tool the law treats differently: article 838 expressly excludes from collation the amount of life insurance taken out in favor of an heir, along with the premiums paid. It doesn’t replace the legítima — your forced heirs are still entitled to their share of the estate — but it’s one of the few ways to give a specific child something extra without reducing what the law guarantees the others.

Foreigners

If you’re domiciled in Peru, these rules — patria potestad, judicial authorization, collation — apply even if your home country has a different regime for donating or inheriting, because article 2100 of the Civil Code governs succession by the deceased’s last domicile, not their nationality. It’s explained in more detail on the forced heirship page.

Before deciding how much to donate

The forced heirship calculator applies these rules to your estate: enter the total value, your debts and who your forced heirs are, and you’ll see how much you can freely donate or will and how much belongs to each of them by law. Go to the forced heirship calculator.

If you bought the property with a partner who isn’t the child’s other parent

When the property you’re planning to transfer was bought together with your current partner, and your children are from a previous relationship, the rules on marital or unión de hecho property regimes come into play too. See property and inheritance in blended families in Peru for that specific scenario.