Posted on Mon, Oct. 15, 2007
BY WILFREDO CANCIO ISLA
El Nuevo Herald
Since 2003, Cuba and the United States have cooperated closely to settle
lawsuits and cases of inheritance involving more than $50 million and
hundreds of Cuban families on both sides of the Florida Straits.
The increasing paperwork and the transfer of inheritance money to Cubans
on the island are generating an inevitable interaction by lawyers and
legal aides in Miami with their counterparts at Bufete Internacional de
la Habana, the International Law Bureau of Havana, and other government
agencies.
Pragmatism has triumphed over political impediments. And the Cuban heirs
on the island can now receive -- in periodic remittances made through
Western Union -- their money, which until now had been frozen in the
United States.
''We're in the presence of a peculiarity in U.S.-Cuba relations, because
both parties are very interested in settling the litigation ahead,''
said Cuban-American lawyer Enrique Zamora, who travels to Cuba every six
weeks, representing about 20 cases. ``These are strictly familial -- not
political -- affairs.''
Typically, the cases involve money, jewels, estates, insurance policies
and stocks that belonged to Cubans who lived in the United States, which
their heirs in Cuba cannot easily obtain or collect because of the
embargo regulations.
In coordination with the 11th Judicial Circuit in Miami-Dade, the
Treasury Department's Office of Foreign Assets Control, or OFAC,
established more than a decade ago a standard procedure to identify and
process the cases of succession that involve Cuban heirs on the island.
''The problem we face in these cases is how to distribute goods and
money belonging to persons who reside in countries considered to be
enemies of the United States,'' said Administrative Judge Maria M.
Korvick, who has headed the Division of Estates and Guardianships in the
Miami-Dade Circuit since 1998.
''We act to protect the system of state and federal laws without
ignoring the heirs who live in Cuba,'' said Korvick, who was born in
Cuba and came to the United States as a child.
According to lawyers and experts, Judge Korvick's leadership has been
decisive in the consolidation of the legal procedures. Cases are
assigned according to a rotating list of local lawyers who receive a
special OFAC license to travel to Cuba and represent the rights of
Cubans claiming inheritances in the United States.
Other Florida counties, including Broward, have followed the Miami-Dade
model to create their own ''guardian ad litem'' programs for these
particular litigations.
In addition to Florida, home to approximately one million Cubans,
similar legal cases are ongoing in New York, New Jersey and California.
Along with Zamora, four other Cuban-American lawyers appear on the
Judicial Circuit's rotating list: José I. Valdés, Luis E. Barreto,
Sergio Méndez and Carlos Enríquez. The latter was a pioneer in the
project to establish contacts in Cuba for testamentary dealings back in
the 1980s.
Since then, Enríquez has handled about 1,000 cases involving estate
adjudications totaling $15 million. He is followed by Zamora, who began
to represent heirs in Cuba in 1994; he has handled 250 cases involving
$20 million in adjudications.
There is a total of 1,500 cases (accumulated or pending adjudication)
and $58.1 million frozen in U.S. banks. That sum is part of $196.1
million blocked from the Cuban government by the 1963 Regulations for
the Control of Cuban Assets.
The amount of money currently held from Cuba was revealed in September
in the Treasury Department's annual report on the assets of terrorist
states, known as the Terrorist Assets Report. It represents a decline of
$72.2 million compared with the previous year, when the sum was reported
as $268.3 million.
The money from each inheritance left to a resident on the island is
deposited in a Cuban blocked account, as the embargo requires.
OFAC officials declined to comment about the money frozen from Cuban
individuals and the remittances program now in effect.
Nevertheless, the situation is changing quietly. In the past four years,
the process has accelerated with the institution of less-strict rules by
the OFAC and the intervention of the Cuban authorities.
In 2003, the Cuban government formally involved the Bufete Internacional
de la Habana and its offices throughout the island in the legal
proceedings and in expediting visas for the American lawyers.
Since then, Cuban lawyers have participated in the interrogation of
potential heirs and witnesses. They also make their conference rooms
available to their visiting colleagues.
The Cuban government recently revised the requirements for legal
interrogations by foreigners. The depositions must be made in the
presence of at least one Cuban lawyer; the witnesses must be represented
by a lawyer who is affiliated to the Cuban bufete (law firm) system.
''Our treatment by Cuba has been respectful, cooperative and
professional. I cannot say otherwise,'' said lawyer Jose Valdes, who
began to travel to the island for testamentary dealings in 1999. He has
represented 53 people whose frozen assets add up to a total of $3.3 million.
Until that time, Treasury Department regulations forbade heirs to access
the amount of their inheritances in U.S. banks unless they emigrated
from Cuba and settled permanently in the United States or in a third
country not considered an enemy of the U.S.
Beginning in 2004, the OFAC-accredited lawyers began to send to Cuba the
remittances of those heirs who signed an affidavit authorizing a
periodic withdrawal of money from their CBAs.
Other beneficiaries prefer to keep their accounts intact, hoping to
leave Cuba at a future date.
However, before adjudicating the money, the lawyers must untie an
intricate legal knot.
When an estate file is opened, the first thing to be determined is if
the deceased left a will in the United States or in Cuba and who his (or
her) beneficiaries are.
If a last will does not exist, the lawyer assigned to the case must
locate the deceased's probable heirs in Cuba.
''Sometimes, the search for heirs takes [the lawyers] to the most remote
Cuban villages,'' Korvick said.
Trips to Cuba to do research on estates, to locate wills or take sworn
depositions cost thousands of dollars. That cost is deducted from the
amount of the inheritance at issue.
Part of the cost goes to Cuban institutions and organizations for the
issuance and notarization of legal documents, the use of working space
and housing for the visiting lawyers.
Each lawyer charges between $200 and $300 per hour. Sworn statements are
videotaped by Kenneth Stern of Custom Video of Miami, who receives $80
per hour; taken down by stenographer Thomas J. Kresse of Kresse &
Associates, who is paid between $75 and $100 per hour, and translated by
Vicente de la Vega of the Miami firm Precision Translating, who receives
$125 per hour.
Air fare, the entry fee to Cuba and hotel accommodations are paid for by
the lawyer assigned to each case. According to OFAC restrictions, the
Cuban lawyers on the island are not paid by the United States.
Once the distribution of estates and inheritances is made, the heirs
living in the United States receive their portion under judicial
supervision. The Cuban heirs' money goes to a CBA in an American bank,
which must report yearly to the OFAC about the balance and transactions
on the account. The account itself may not be transferred to anyone who
is not an heir.
Every three months, the Bufete Internacional in Havana asks the guardian
lawyers to report the names and addresses of the Cuban heirs, their
share of the inheritance, the remittances made and the remaining
balances in the blocked accounts.
Valdes believes that the flow of normal relations in this field ``is
mutually beneficial. . . . United States courts cannot afford to be
congested with cases that remain open for an indefinite period,
withholding the inheritances that belong to residents of this country.''
''Besides, every estate that is frozen ceases to generate taxes for
Uncle Sam,'' he added.
The process is also advantageous to Cuba, because the deserving heirs
receive their money and the government collects fees for services rendered.
Judge Korvick agrees that the freezing of inheritance cases would be
counterproductive, even for the transparency of the American system of
property ownership.
''If estates and inheritances are not duly distributed, the property
deeds would not offer sufficient guarantees to the investors and the
security of the U.S. system would be damaged,'' she said.
The unstoppable flow of Cuban immigrants to the United States in the
past three decades will inevitably lead to an increase in the number of
legal cases involving potential heirs who remained in Cuba, experts believe.
''There are several generations of Cubans living in Miami who are
leaving their possessions to their relatives,'' Zamora said. ``A lot of
people are unaware of this service. And I believe that in the next
several years, the number of cases is going to skyrocket.''
http://www.miamiherald.com/news/americas/cuba/story/272187.html
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