Fideicomiso (Latin American Trust)

A fideicomiso is a contract under which one person, the settlor (fideicomitente; in Argentina, fiduciante), transfers assets or rights to another, the trustee (fiduciario), who manages them as a separate estate to carry out the purpose set in the contract, for the benefit of whoever the contract names. It is governed by, among others, art. 381 of Mexico's General Law of Negotiable Instruments and Credit Operations (LGTOC) and art. 1666 of Argentina's Civil and Commercial Code (CCyC). In Colombia it is called fiducia mercantil, and in Ecuador, fideicomiso mercantil. Spain's Civil Code does not regulate it as a contract.

The parties in each country.

In Argentina and Colombia, the law bars the trustee from keeping the assets (CCyC art. 1676; Commercial Code art. 1244).

Separate estate. The assets are not mixed with the trustee's own and are not liable for the trustee's debts (CCyC arts. 1685 and 1686; LGTOC art. 386; Colombian Commercial Code arts. 1227 and 1233; Peruvian Law 26702 arts. 241 and 253). In Colombia this pool of assets is called a patrimonio autónomo, and in Ecuador it even has legal personality (art. 109 of the Securities Market Law).

Common types in each country.

• Mexico. Guarantee trust: secures an obligation and priority of payment; only banks, insurers, surety companies, brokerage firms, SOFOMs with a current registration, general deposit warehouses, credit unions and fund operators may act as trustee (LGTOC art. 395). Issuing trust: issues trust exchange certificates (certificados bursátiles fiduciarios), with a bank, brokerage firm or investment company operator as trustee (art. 63 of the Securities Market Law). FIBRA: invests at least 70% of its assets in real estate and distributes at least 95% of its taxable income (arts. 187 and 188 of the Income Tax Law). Restricted zone trust: lets foreigners use and benefit from property in the strip 100 km along the borders and 50 km along the coast without acquiring property rights in it, with a bank as trustee, a permit from the Ministry of Foreign Affairs and a maximum term of 50 years, renewable (arts. 2(VI), 11 and 13 of the Foreign Investment Law). More in asset tokenization in Mexico.
• Argentina. The general regime of arts. 1666 and following accepts any asset that can be traded (art. 1670) and is used, for example, to manage assets or develop a property; the «al costo» (at-cost) real estate trust is a contracting practice, not a type the CCyC regulates. In addition: guarantee trust (art. 1680), financial trust, with an authorized trustee and beneficiaries who hold securities (arts. 1690 and 1691), and testamentary trust (art. 1699). General maximum term of 30 years (art. 1668).
• Colombia. The Financial Superintendence classifies trust business into investment, real estate, administration, guarantee and social security trusts (Basic Legal Circular, Part II, Title II, Chapter I, para. 8).
• Peru and Ecuador. In Peru (Law 26702, arts. 241 to 274), trustees can be COFIDE, banks and other multiple-operation companies, trust services companies and other entities named by law (art. 242), under the SBS; in securitization, only securitization companies (art. 300 of the Consolidated Text of the Securities Market Law). In Ecuador, the fideicomiso mercantil (Book II of the Organic Monetary and Financial Code, arts. 109 to 137) is managed by fund and trust management companies (art. 97), with a maximum term of 80 years (art. 110).

Does the fideicomiso exist in Spain? Not as a statutory (typical) contract: the Civil Code does not regulate it as such, and the device it contains is the fideicommissary substitution (sustitución fideicomisaria), used in inheritance: the testator instructs the heir to keep the assets and pass them on to a third party. It is valid if it does not go beyond the second degree or is made in favor of people alive when the testator dies (art. 781), it must be express (arts. 783 and 785), and it cannot burden the forced share, except in favor of children with disabilities (art. 782). The Civil Code of Catalonia also regulates the fideicomiso as an inheritance institution, created by succession agreement, will, codicil or gift upon death (arts. 426-1 and 426-2 of Law 10/2008).

Spain is not a party to the 1985 Hague Convention on the law applicable to trusts, but its anti-money laundering law does address foreign trusts: it treats the settlor, the trustee, the protector and the beneficiaries, among others, as beneficial owners (art. 4.2.c of Law 10/2010), and requires trustees resident or established in Spain who manage a trust with activities in the country to obtain, keep and update that information (art. 4 ter). For several investors to share a property, Spain uses other structures: a special purpose vehicle (SPV), a SOCIMI or an investment fund.

Fideicomiso and tokenization. The token does not represent the property, but the investor's rights against the trust: a participation certificate or a debt security (CCyC art. 1693), a trust exchange certificate (certificado bursátil fiduciario) or a fiduciary participation. Of the five Latin American countries above, only Argentina has an authorized route today: securities of publicly offered financial trusts can be represented digitally under the CNV tokenization regime (Title XXII of its Rules, created by General Resolution 1069/2025), in a sandbox until December 31, 2027 (art. 38) and with virtual asset service providers registered in all categories (art. 14). Mexico, Colombia, Peru and Ecuador have no enabled route today; in Ecuador, offering unsecuritized trust rights to the public is also prohibited (art. 138 of the Securities Market Law).

How it differs from an SPV and a FIBRA. An SPV is a company, with legal personality, shareholders and directors. A fideicomiso has no shareholders: the trustee holds title and the law ring-fences the estate. A FIBRA is a specific type of trust for rental properties: in Mexico, with the requirements of arts. 187 and 188 of the Income Tax Law; in Peru, it is a publicly offered securitization trust (art. 71 of the Asset Securitization Regulation, added by SMV Resolution 009-2019-SMV/01).

How it is used in real estate projects in each country, and where it can be tokenized today, is covered in real estate trusts and tokenization in Latin America; the full regulatory map is in asset tokenization in Latin America.

Official sources: Argentina's Civil and Commercial Code (InfoLEG); General Law of Negotiable Instruments and Credit Operations (Chamber of Deputies); Foreign Investment Law (Chamber of Deputies); Colombian Commercial Code, arts. 1226 to 1235 (Senate); Spanish Civil Code (BOE); Law 10/2010 on anti-money laundering (BOE); Status of the 1985 Hague Trusts Convention (HCCH); CNV Rules, Title XXII, updated text (InfoLEG).

Framework verified as of October 13, 2026. At Unknown Gravity we build the technology to tokenize the rights in a trust: smart contracts, investor registry and platform. We work with the trustee and the client's local legal counsel; we do not act as trustee. Talk to us.