Joint families? Yes; with separate estates

The best way to keep a family together is to have a separate family patrimony. That is to say, in order for the family to fulfill its original function, which is to be a group of people united by blood or spiritual ties called to give each other moral support and accompaniment during their lives, the patrimonial issue must be freely managed by the children or descendants of the founders of the family, in their absence.

Such patrimonial management must be able to be done under the risk criteria that each member considers more convenient (even when this management implies the decrease of the same or even its loss) and without having to count for it with the criterion of the other members of the family. This general premise has, as any rule, its exceptions and, since each case is different, the most convenient solutions and structures must be considered for each situation.

In the first place, there are family estates that are indivisible by express will of the constituent or founder, as it happens with the assets owned by a Trust, a Private Interest Foundation abroad or a national trust and which are called to belong to certain beneficiaries once a series of terms and conditions have been fulfilled.

In such case, and as long as they do not contravene the Colombian legal provisions, rules must be adopted -through family protocols or other acts- in order to honor the design of the incorporators.

Secondly, there are estates that are difficult to divide (but not legally indivisible), as is the case with real estate of great extension or with real estate or goods destined to specific uses. In such cases it must be ensured that the division of the assets does not substantially affect their value, since this would result in a generalized devaluation for all.

However, this can be done through a reorganization of the estate, an effective (and fiscally neutral) segregation of the same, which can be accompanied by a shareholders' agreement or other statutory agreement tending to regulate the obligations of the different members of the family with respect to the estate.

Thirdly, there are assets that, although owned in Colombia or abroad, are strategically indivisible, since their division would imply a loss of a strategic position, as it happens in the case of shareholdings that together give rise to a controlling position in a company. This situation, where clearly the unity in the sense of the vote must be preserved, can also be regulated through shareholders' agreements which, at least in the S.A.S., can deal with any lawful act and not simply with the way of exercising the vote. Whatever the specific situation of the family assets, it is common to see that family groups are composed of members whose conditions are not always equal; there are members whose personal assets are exposed to certain risks (risks of divorce in couples who have not subscribed capitulations, risks of seizures, etc.) and members who are minors or young people who have not completed their professional training, for which the proper guidelines can be defined for the management of such situations through statutory reforms, testamentary dispositions, family protocols and the use of trusts.