Derechos fiduciarios (Beneficial Interests in a Colombian Trust)

Derechos fiduciarios (fiduciary rights) are a person's interest in a Colombian fiducia mercantil trust contract: the rights the contract grants over the autonomous trust estate, not ownership of the assets in it. Colombia's Tax Code (Estatuto Tributario) defines them as any interest in a fiducia mercantil contract (art. 271-1, paragraph 1). They are held by the settlor who contributes the assets and, if it is someone else, by the beneficiary of the fiducia mercantil.

Where they come from. In a fiducia, the settlor (fideicomitente) transfers one or more assets to a trust company, which undertakes to manage or dispose of them to fulfill a stated purpose, for the benefit of the settlor or of a beneficiary (art. 1226 of the Commercial Code). Those assets form a patrimonio autónomo (autonomous trust estate), kept apart from the trust company's own assets and from its other businesses (art. 1233). The beneficiary can require the trust company to perform its duties, challenge its voidable acts within five years, oppose attachments of the assets and, for just cause, request its removal (art. 1235).

Fiduciary rights and the autonomous trust estate are not the same thing.

• The autonomous trust estate is the pool of assets the trust company manages: the property, the cash, the loan portfolio.
• Fiduciary rights are each settlor's or beneficiary's position in that pool. For the settlor, their tax value (valor patrimonial) follows the settlor's share of the trust's equity (art. 271-1 of the Tax Code).
• Against creditors: the beneficiary's creditors can only go after the income the assets produce, and the settlor's creditors cannot go after the assets unless their claims predate the trust (art. 1238 of the Commercial Code).

How they are transferred. The trust title of the Commercial Code (arts. 1226 to 1244) does not regulate the assignment of these rights, so the conditions depend on each contract. The Tax Code does address it:

• Fiduciary rights carry the tax basis and tax attributes of the assets contributed to the autonomous estate (art. 102, item 1).
• On an assignment, income arises when the assignor's equity increases (art. 102, item 1).
• If the rights pass to someone other than the settlor, income tax or capital gains tax (ganancia ocasional) falls on the settlor; if the transfer is free of charge, on the recipient (art. 102, item 4).
• Each year the trust company must issue every settlor a certificate showing the value of their rights and their income (art. 271-1, paragraph 2).

What gets tokenized in a real estate trust. In a real estate project, the property and the funds sit in the autonomous estate. What is split among investors are rights over it. The Superintendencia Financiera de Colombia (SFC), the financial supervisor, calls them participaciones fiduciarias (trust participations): they entitle investors to share in the economic results of the trust without owning the property (Basic Legal Circular, Part II, Title II, Chapter I, section 5.5). Three rules shape any project:

• Offers to 20 or more people: if participations are offered to the public or to 20 or more specific persons, it counts as a mass-market service and the SFC must review the contract model in advance (same section 5.5; art. 146.4 of the Organic Statute of the Financial System).
• Not securities, except in securitization: the SFC holds that trust participations do not meet the definition of a security in art. 2 of Law 964 of 2005 (Opinion 2018115106-001). Rights arising from a securitization process are securities (art. 2(e) of that law).
• No specific rule on tokens: we have not found any rule or SFC opinion on fiduciary rights represented as tokens. Our reading: the distributed ledger is the medium; it does not change the nature of the right or the rules above.

The full picture, country by country, is in real estate trusts and tokenization in Latin America, and the Colombian framework in asset tokenization in Colombia. If you are planning a structure like this, with local legal counsel, talk to us.

Official sources: Colombian Commercial Code, arts. 1226 to 1235 (Senate); Colombian Tax Code, art. 102; Colombian Tax Code, art. 271-1; SFC Basic Legal Circular (External Circular 006 of 2025); Law 964 of 2005, art. 2. Framework verified as of October 13, 2026.