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Wills and Inheritance

wills-and-inheritanceInternational inheritance and estate matters can be very complex, in particular if assets are located in different countries. Moreover, disposing of an estate may trigger tax consequences. It is, therefore, highly recommended to seek expert advice on estate planning at an early stage. The following will give a rough overview of the basic principles of inheritance law in Brazil.

Which Law Applies?

Brazilian courts apply the national law of the country where the deceased used to live and/or Brazilian law where it is more favourable to the Brazilian spouse or children of the deceased. Brazilian courts have exclusive jurisdiction over the relevant probate proceedings and to distribute the assets situated in Brazil.

Brazilian law applies to all owners of property in Brazil, including foreign nationals, and does not distinguish or specify a different form of treatment for foreign nationals owning property in Brazil, members of different religions, or non-Brazilian resident foreign nationals.

The Brazilian Civil Code (Law 10406/2002) contains the rules concerning succession, and the Code of Civil Procedure (Law 5869/1973) sets forth the procedural rules applicable to successions. In its turn, the Introduction to the Brazilian Civil Code Act (Decree-law 4657/1942) specifies which law will apply in the event of a succession with international elements.

In case the actual applicable law is disputed, the court with jurisdiction over the location of the estate will determine which law is to govern, and in general Brazilian law will normally be applied. Some States have courts with special jurisdiction for family law matters. All proceedings involving family law cases are confidential.

Inheritance cases tend to last not less than six months. However, proceedings may last a number of years where the beneficiaries (heirs and/or legatees) do not agree with their rights and obligations

Reserved Portion

Brazilian law requires that a reserved portion equal to 50 percent of the estate be distributed to the so-called necessary heirs, namely the existing descendants, ascendants and surviving spouse. The remaining 50 percent may be freely distributed under a will. Where there is no will or a will is found to be invalid, the whole estate is distributed to the necessary heirs. These rules apply to foreign nationals precisely in the same manner as they apply to Brazilian citizens.

Hereditary succession operates as follows:

In principle, the assets are shared between the descendants and the surviving spouse. Except in relation to special cases, the spouse is entitled to a portion of the estate equal to that of the portion distributed to the descendants.

In case the deceased leaves no descendants, the estate is shared between the ascendants, and the spouse. Where there are first degree ascendants, (for example father and mother) one third of the estate is distributed to the surviving spouse. However, the surviving spouse will receive 50 percent of the estate if:

  1. There are only ascendants within a further degree of kinship or
  2. There is only one first degree ascendant.

In the absence of descendants and ascendants, the estate is entirely distributed to the surviving spouse. Where there are no descendants, ascendants and a surviving spouse, the estate is inherited by the collateral relatives up to the fourth degree, and there being no relatives as well as in case inheritance is waived, the estate is distributed to

  1. The relevant Municipality or the Federal District, if located in their jurisdictions, or
  2. The Federal Government, if located within a federal territory.

The Will

While the making of wills is not a widespread practice in Brazil, any competent person can make one directing how their property – or any part thereof – should be distributed after death. A testator may revoke their will at any time.

A will can be made:

  1. As a public deed, in which case a notary public draws up the will, reads it out before two witnesses and the will is then executed.
  2. As a private document, in which case it is written, read out and executed before three witnesses. The law allows private wills to be written in any foreign language, provided that the elected language is understood by the three witnesses in attendance.

A will drawn up overseas is accepted in Brazil on the condition that it satisfies the requirements of the country in which it was drawn up and Brazilian law does not apply. Nevertheless, foreign nationals should consider making their wills locally, preferably as a public deed, for the following reasons:

  1. This will enable the testator to plan their succession and to prevent disputes between successors when assets are distributed.
  2. The validity of the will made overseas will not be open to consideration (the validity of a will is ascertained pursuant to the law of domicile of the deceased at the time of their death
  3. This reduces considerably the scope for misinterpretation of the will in court.

In order to make a local will the foreign national has to be in Brazil, and Brazilian law does not permit the last will to be declared by the deceased’s legal representatives or attorneys and third parties to decide on the contents of a will and on the probating thereof. The testator is the only person entitled to document their last will.

Assets in excess of the reserved portion may be freely bequeathed and so may the whole estate where there are no necessary heirs.

During the Lifetime of the Property Owner

During their lifetime, a property owner may gift their assets to anyone, provided that:

Transfers of real estate may be made by way of inter vivos gifts and for any reason, on any or no payment.

Inheritance by Children

Minors have to be represented by their parents or guardians in case assets are distributed to them. Parents may appoint guardians in their wills or another official document. Where the appointment of a guardian is required, the courts will appoint one.

For cases in which there is not an appointed guardian, the guardian will be a blood relative of the minor, subject to the following order:

  1. Ascendants
  2. Collateral relatives up to third degree.

Restrictions on Inheritance by Foreign Nationals

In general, the same rules applicable to Brazilian individuals and companies with regards to acquisition of real estate apply to their foreign counterparts. There is however an exception in relation to the acquisition by foreign individuals and companies of real estate in coastal and frontier areas as well as certain other areas deemed of national security.

Before purchasing real estate in Brazil, non-residents (both individuals and entities) have to enroll with the Brazilian taxpayers’ registry.

Brazilian law does not provide a specific deadline for the sale of property acquired by way of inheritance which cannot be owned by foreign persons. Therefore, foreign persons should seek legal advice specific to their particular case.

Other issues

It is important to consider the tax applicable (Inheritance tax – Imposto Transmissão Causa Mortis e Doação – ITCMD) to causa mortis property transfers and gifts of any type of property or rights, which is levied by Brazilian States and the Federal District. For example, Law 10.705 of 28 December 2000 provides that the applicable tax rate in the State of São Paulo is four percent.

Disclaimer

This text is not intended to render legal advice. Readers are encouraged to seek professional advice concerning specific matters before making any decision.



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