Succession in the Latin American Family Business, challenges from Cuba (final).

A very useful tool, in addition to the family protocol, would be the will, and this is an advantage of our legislation, which establishes respect for testamentary succession as a fundamental principle.

Another very useful instrument to guarantee the continuity of the Family Business is the so-called family protocol, which serves to regulate the activity of the family business. Nowadays, it is extremely valuable and in some occasions they are considered legal instruments. This is given because it constitutes a pact between parts, which can acquire effects in front of third parties; in some legislations as that of Valencia formalities and requirements of publicity are demanded, as for example, the formalization by means of notarial public writing and in occasions the inscription in the Mercantile Registry of these protocols or of some of its clauses.

It is also important to ensure that the protocol is a flexible document, susceptible to changes, since it must always be analyzed that this institution is also based on family relationships, therefore, prone to changes, such as the dissolution of a marriage.

The family succession policy established in the protocol is legally supported by wills and is not welcomed in the same way by companies with a large number of owners as when we are talking about smaller companies, where affectionate family ties predominate over economic and legal interests

The first and greatest of these challenges stems from the absence of constitutional regulation in this regard, since the Magna Carta refers to the forms of ownership that it admits.

Another of the filters that should be passed would be under what modality, from the economic or mercantile point of view, this family business would be materialized and what requirements would be demanded for its constitution.

It would be important in this process to establish the rules to be followed for the constitution of the family protocol, as a legal document to be respected by the parties of the company (possibly it could be by means of a notarial public deed).

Regarding the succession, specifically, it should first go through the legislative recognition of this form of ownership in order to be able to be transmitted. This could be inter vivos, by gradual transfers or by donation, or mortis causa.

A very useful tool in this sense, in addition to the family protocol, would be the will, and this is an advantage of our legislation, which establishes respect for testamentary succession as a fundamental principle.

MS.c. Isel Guirola Rodríguez. Assistant Professor University of Matanzas.