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Wills and probate

Succession rules

What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?

In Brazil, individuals may dispose of their assets by means of a will or the forced heirship determined by law. Brazilian legislation determines that there is a portion of an individual’s estate that must be divided among specific heirs (ie, the legitimate succession). The legitimate succession determines that the kinships to be considered in the succession line are the descendants, who compete with the surviving spouse (regardless of the marital regime). Subsequently, the next kin in the succession line as per Brazilian legislation are the ascending relatives, who also compete with the spouse (if existent). The collateral relatives are the last kin to be included in the legitimate succession. As per Brazilian law, all such individuals are entitled to at least 50% of the deceased’s assets.

The inheritance is shared between the deceased’s descendants and the spouse according to the number of heirs; the status of the spouse is the same as that of the descendants. All descendants participate in the inheritance – even adopted children and children born out of wedlock. If there are no descendants, the ascendants (ie, the parents) may compete with the surviving spouse for the inheritance. In this case, the surviving spouse may continue to live in the real property owned by the deceased that was used as their daily residency, provided that it is the sole property of such nature. The surviving spouse may benefit from the inheritance only if he or she was not divorced or separated from the deceased. Only if there are no descendants or ascendants may the surviving spouse benefit solely from the legacy. The collateral relatives up to the fourth degree (ie, siblings, aunts and uncles, cousins, great uncles and great aunts) may benefit from an inheritance if there is no surviving spouse, descendant or ascendant. In this case, the closest degree of kinship of collateral relatives excludes the more distant ones (ie, siblings take precedence over aunts and uncles in receiving the legacy).

Intestacy

What rules and procedures govern intestacy?

In case of intestacy, legitimate succession (ie, succession as determined by law) applies in Brazil. Brazilian law determines that there is a portion of an individual’s inheritance that must be divided among his or her legitimate successors. The first individuals to be considered in the succession line are the descendants, who compete with the surviving spouse (depending on the marital regime). Subsequently, the next kin in the succession line are the ascending relatives, who also compete with the spouse (if existent). The collateral relatives are the last kin to be included in the legitimate succession. As per Brazilian law, all such individuals are entitled to at least 50% of the deceased’s assets.

It is important to note that in case of intestacy, the property of the inheritance will be held under the custody and administration of a curator, until the successor is finally determined.

Governing law

What rules and restrictions (if any) apply to the governing law of a will?

In Brazil, every capable and discerning individual over 16 years old may dispose of the totality of his or her assets (or a part thereof) by will, after death. However, the law determines that the legitimate succession’s assets (ie, the portion of an individual’s inheritance that must be divided among his or her successors) must not be included in the will. All will provisions are relevant and applicable, including non-patrimonial ones.

The right to question the validity of a will is extinguished after five years following the date of its registry.

Formalities

What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?

There are three kinds of will in Brazil, depending on the time of drafting:

  • a public will (ie, drafted instantly by the notary);
  • a private will (ie, drafted in closed quarters); and
  • a closed will (ie, drafted in closed quarters and read to the notary).

Public will

In order to be considered legitimate, a public will must be written (manually or mechanically) by a notary or the appropriate legal substitute in the relevant registry, according to the declarations of the author of the inheritance. As soon as the will is drawn, it must be read aloud either by the notary or by the author before two witnesses, who will all execute and initialise the will jointly.

Private will

A private will may be confidentially drawn in writing or digitally and read out loud and executed by at least three witnesses. Once the author is dead, the will shall be made public in court, and the heirs shall be called upon. A private will can be written in a foreign language only if the witnesses understand that language.

Closed will

A closed will is written by the author or a third party at the author’s request, and validated with the notary or the appropriate legal substitute. In this case, the author of the inheritance must deliver the will to the notary before two witnesses, declare the will as his or hers and request its immediate approval. The notary shall immediately draw the approval, reading it out loud before the author and the witnesses, who shall all jointly sign the will. A closed will can be written in a foreign language.

Validity and amendment

How can the validity of a will be challenged? Can the will be amended after the decedent’s death?

In Brazil, the validity of a will may be challenged if:

  • the provision for legitimate succession (ie, the portion of an individual’s inheritance that must be divided among his or her successors) is not complied with; or
  • the author of the inheritance is not deemed capable.

It is also possible to challenge a will because formal requirements were not met.

The will may not be amended after the decedent’s death – otherwise, the succession shall be altered in order to reflect that the deceased heir’s inheritance shall be passed on to his or her descendant.

How is the validity of a will established in your jurisdiction?

In Brazil, the validity of a will may be challenged if:

  • the provision for legitimate succession (ie, the portion of an individual’s inheritance that must be divided among its successors) is not complied with; or
  • the author of the inheritance is not deemed capable.

To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?

Foreign wills are recognised by Brazilian law as long as they respect the legitimate succession provision of Brazilian law (ie, the portion of an individual’s inheritance that must be divided among the decedent’s successors). Further, foreign wills must take one of the three forms available under local law:

  • public (ie, drafted instantly by the consular authority, rather than the notary public);
  • private (ie, drafted in closed quarters, independent from the consular authority’s approval); or
  • closed (ie, drafted in closed quarters and read to the consular authority).

Estate administration

What rules and procedures govern:

(a) The appointment of estate administrators?

The distribution of assets and appointment of estate administrators may be judicial or extrajudicial. The distribution may take place before a public notary if:

  • the heirs are consenting regarding the distribution of assets;
  • the heirs are not minors or incapable; and
  • the deceased has not left a valid will.

In this case there is no need for an estate administrator.

In all other cases, a judge whose jurisdiction covers the main residence of the estate will be responsible for appointing potential estate administrators, who then become fully responsible for duly and faithfully conducting the succession, on oath. The appointment is made according to the following order:

  • the surviving spouse or partner;
  • the heirs;
  • the devisee;
  • the executor;
  • the assignee of the heir or devisee;
  • the creditor of the heir, of the devisee or the decedent;
  • the Public Prosecutor’s Office, if there are incompetent heirs;
  • the tax authority, in case of relevant interest thereof; and
  • the bankruptcy trustee of:
    • the heir;
    • the devisee;
    • the decedent; or
    • the surviving spouse or partner.

(b) Consolidation and administration of the estate?

Twenty days after being appointed, the estate administrator will make the first statements, containing a full profile of the decedent and the heirs, as well as a complete list of the estate and its value.

The judge will then serve the process, for the purpose of the terms of the probate process, distribution and notification of the tax authorities. The heirs, admitted or pretermitted, may then:

  • file statements and claims;
  • allege errors, omissions and concealment of assets;
  • object to the appointment of the administrator; or
  • contest the capacity of those included as heirs.

At the end of this procedure, the judge will appoint an expert to appraise the assets of the estate, which may also be contested.

Before the distribution, the creditors of the estate may apply to the probate court for the settlement of overdue and enforceable debts.

(c) Distribution of the estate to heirs?

If the distribution is judicial, the heirs may file a claim to divide the estate. Assets that cannot be divided shall either be bided between interested parties or judicially sold, unless agreed otherwise by all heirs. The devisee then makes a draft of the distribution, against which the heirs may file claims. Once the draft is resolved, the devisee must pay estate taxes. Then the judge will render judgment on the distribution.

If the distribution is extrajudicial, the division of assets to heirs will be made pursuant to a deed of distribution registered before a notary.

(d) Settlement of the decedent’s debts and payment of any taxes and fees?

The Civil Code governs the settlement of the decedent’s debts and the payment of taxes and fees. These are paid up to the limit of the amount of inheritance.

Planning considerations

Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?

There are discussions in Brazil about raising the rate of gift and inheritance tax. Currently, the rate varies from 4% to 8%, depending on the state. To prevent being affected by any future rise in taxes, individuals may consider gifting their inheritance to their successors now, thus taking advantage of the present rates.

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