Estate Inventory in Portugal When the Deceased Was Brazilian: Applicable Law, Notary or Court

A Brazilian has died and left assets in Portugal: an apartment in the Algarve, an account at a Portuguese bank, a car, a share in a company. The heirs, often spread across the two countries, soon discover that these assets are not included in the inventory carried out in Brazil. On the Portuguese side, the questions are different: which law decides who inherits, whether the process takes place before a notary or in court, what the declaration of heirs is and whether there is tax to pay.

This article covers the Portuguese side of a Brazilian's estate, whether the person lived in Portugal or in Brazil. If the death occurred in Portugal and the family also has assets in Brazil, start with our guide on the first steps when a death occurs in Portugal with assets in Brazil. If you live in Portugal and have inherited a property in Brazil, see I inherited a property in Brazil and live in Portugal.

First: which law governs the estate

In Portugal, successions opened on or after August 17, 2015 follow Regulation (EU) 650/2012. The deceased's Brazilian nationality is not the main criterion. What counts is the habitual residence at the time of death (Art. 21(1)), and the law so designated governs the entire succession, including assets located in Portugal. The Regulation applies even when the law designated is that of a State outside the European Union, such as Brazil (Art. 20).

If the deceased lived in Portugal

As a rule, Portuguese law applies. This determines the forced heirship share (legítima): the spouse, descendants and ascendants are forced heirs (herdeiros legitimários), and the portion of the estate reserved for them varies depending on who inherits together (Arts. 2157 to 2161 of the Portuguese Civil Code). There are two exceptions:

• Choice of Brazilian law in a will: a person with Brazilian nationality may choose, in a disposition upon death, Brazilian law to govern the entire succession (Art. 22 of the Regulation). In that case, the heirs and their shares follow the Brazilian Civil Code.
• Manifestly closer connection: exceptionally, if it is clear from all the circumstances that the deceased was manifestly more closely connected with another State, the law of that State applies (Art. 21(2)).

If the deceased lived in Brazil

Portuguese authorities generally apply Brazilian law, including to property located in Portugal. The Regulation allows renvoi to the conflict-of-law rules of the third State (Art. 34), but the Brazilian rule calls for the law of the deceased's domicile (Art. 10 of the LINDB (Law of Introduction to the Norms of Brazilian Law)), which, in this scenario, is Brazilian law itself. In practice, the Portuguese notary's office or court will apply, for example, the forced share of half of the estate and the rules on the spouse's concurrent inheritance set out in the Brazilian Civil Code.

When the succession is not governed by Portuguese law and the notary is not familiar with the foreign law, the deed of declaration of heirs must be accompanied by a suitable document proving the foreign law (Art. 85(2) of the Notarial Code (Código do Notariado)). It is worth preparing this document from the outset. Our page on international succession compares the forced share in the two countries.

Who handles the assets in Portugal

In practice, the estate of someone who had assets in both countries is settled through two procedures:

• Assets in Brazil: the inventory and partition fall exclusively within the jurisdiction of the Brazilian courts (Art. 23, II, of the Code of Civil Procedure (CPC)), and an inventory deed executed in Brazil cannot include assets located abroad (Art. 29 of CNJ Resolution 35/2007).
• Assets in Portugal: these are handled by the Portuguese authorities. If the deceased resided in Portugal, the Portuguese authorities have jurisdiction over the succession as a whole (Art. 4 of the Regulation). If the deceased resided in Brazil, the Portuguese courts rule on the entire succession when the deceased had Portuguese nationality or had resided in Portugal and the action is brought within five years of the move; outside these cases, they rule only on the assets located in Portugal (Art. 10).

When the estate includes assets in Brazil, the Portuguese authority may, at the request of one of the parties, decline to rule on them if its decision would not be recognized in Brazil (Art. 12 of the Regulation). The Brazilian inventory, in turn, does not transfer the apartment in Faro or release the Portuguese bank account.

Notary or court: the three paths in Portugal

1. Declaration of heirs and partition by agreement

If all interested parties agree, the partition is carried out at the registry offices or before a notary (Art. 2102(1) of the Portuguese Civil Code). This is the most common and fastest path, and there are two ways in:

• Notary's office: the deed of declaration of heirs (habilitação de herdeiros) states who the heirs are, based on the statement of the estate administrator (cabeça-de-casal) or of three credible persons (Arts. 82 and 83 of the Notarial Code), and may be followed, in the same act, by the deed of partition. The declaration of heirs serves as the title for registrations and for withdrawing funds (Art. 86).
• Inheritance Desk (Balcão das Heranças): this IRN (Institute of Registries and Notary) service combines the declaration of heirs, the partition, the registrations and the notification to the Tax Authority into a single procedure (justica.gov.pt). Partition at the Inheritance Desk requires the estate to include at least one asset subject to registration, such as a property, a vehicle or a company share, and all parties involved must be present or represented on the day of the act (IRN).

Our page on the declaration of heirs in Portugal details the documents and official costs of each path.

2. Inventory proceedings before a notary

Without agreement, the inventory proceedings (inventário) are used (Art. 2102(2)). Since Law 117/2019 (Lei), they may be requested, at the choice of the person who starts them or by agreement of all, in the courts or at notary's offices (Art. 1083(2) of the Portuguese Code of Civil Procedure). If the inventory is opened at a notary's office without everyone's agreement, the directly interested parties representing more than half of the estate may ask for it to be transferred to the court, until the end of the period for objections (Art. 1083(3)).

3. Inventory proceedings that must be held in court

The inventory can only take place in court when (Art. 1083(1)):

• the Public Prosecutor's Office considers that the interests of a legally incapacitated heir require the estate to be accepted with the benefit of inventory;
• an heir cannot take part in a partition by agreement because they are absent with unknown whereabouts or due to permanent de facto incapacity (Art. 2102(2)(b) and (c) of the Civil Code);
• the inventory depends on other court proceedings;
• the inventory is requested by the Public Prosecutor's Office.

In addition to partition, the inventory also serves to list the assets of the estate when there is no partition to be made (Art. 1082 of the Portuguese CPC).

Stamp Duty: the deadline that runs first

In Portugal, inheritances are subject to Stamp Duty (Imposto do Selo) of 10% on assets located in the country (item 1.2 of the General Table and Art. 4 of the Stamp Duty Code). The spouse or de facto partner, descendants and ascendants are exempt (Art. 6(e)). Siblings, nephews and nieces and other heirs pay.

Exempt or not, the estate administrator must report the death and list the assets to the tax office by the end of the 3rd month following the month of death (Art. 26). When the deceased did not reside in Portugal, the assessment is handled by the tax office for the residence of the estate administrator or of the beneficiary (Art. 25(2)). And a Portuguese bank only releases the funds after the tax has been paid or, if there is an exemption, after the notification has been filed (Art. 63-A). The step-by-step for the filing is in the article Stamp Duty: how to report a death to the Tax Authority.

Are the assets in Portugal still frozen? Sene & Araújo, with offices in Albufeira and São Paulo, files the notification with the Tax Authority and handles the declaration of heirs and the partition in Portugal on behalf of heirs who live in Brazil. Talk to our team.

Step by step on the Portuguese side

1. Obtain the death certificate. If the death occurred in Brazil, the Brazilian certificate is submitted with the Hague apostille. Documents in Portuguese generally do not need to be translated.
2. Search for wills in both countries. In Portugal, the certificate on the existence of a will is requested from the Central Registry Office (Conservatória dos Registos Centrais), also online, attaching the death certificate if the death occurred abroad (justica.gov.pt). In Brazil, the CENSEC (central notarial registry) is consulted.
3. Determine the applicable law and, if it is Brazilian law, prepare the document on its content.
4. Obtain a NIF for each heir. Anyone residing outside the European Union must, as a rule, appoint a tax representative, unless they sign up for electronic notifications (Art. 19 of the General Tax Law).
5. Report the death to the Tax Authority within the Stamp Duty deadline.
6. Complete the declaration of heirs at a notary's office or at the Inheritance Desk.
7. Partition the estate, by agreement or through inventory proceedings.
8. Register and withdraw. After the partition, registration of the acquisition in the land registry must be requested within two months (Art. 8-C of the Land Registry Code); with the declaration of heirs and the notification to the Tax Authority, banks release the funds.

Heirs living in Brazil

Living in Brazil does not prevent anyone from being declared an heir or from taking part in the partition in Portugal. An heir who cannot be present is represented by an attorney-in-fact, under a public power of attorney, a document with the signature acknowledged in person, or an authenticated document (Art. 116 of the Notarial Code). The power of attorney must grant specific powers for each act: declaration of heirs, partition, acceptance of the inheritance, sale, registrations. If it is executed in Brazil, it should be apostilled. The page on powers of attorney between Brazil and Portugal compares the alternatives.

Decisions and documents that cross the Atlantic

• Brazilian judgments on personal status: if a Brazilian divorce or paternity decision determines who is the spouse or child of the deceased, its recognition by the Court of Appeal (Tribunal da Relação) may be needed for it to take effect in Portugal (Arts. 978 to 980 of the Portuguese CPC), except when it is relied on in pending proceedings only as evidence.
• European Certificate of Succession: it is used to prove status as an heir in another Member State of the European Union (Art. 63 of the Regulation). It is useful if there are also assets in Spain, France or Italy, for example, but it has no effects of its own in Brazil.
• Consistency between the two inventories: whenever possible, the applicable law should be the same in both procedures, and the forced share should be calculated with a view of the entire estate.

Three practical scenarios

• A Brazilian retiree who lived in Albufeira, widowed, with two children in Brazil: Portuguese law; the children are exempt from Stamp Duty, but the notification is mandatory; declaration of heirs and partition of the apartment by deed or at the Inheritance Desk, with the children represented by power of attorney. The assets in Brazil go through Brazilian inventory proceedings, also applying Portuguese law.
• A Brazilian woman who lived in São Paulo and had a vacation apartment in Lagos: Brazilian law; Portuguese jurisdiction limited to the apartment, unless she also had Portuguese nationality or had lived in Portugal and the action was brought within five years of the move; deed of declaration of heirs accompanied by proof of Brazilian law.
• Heirs who do not agree on the property in Portugal: inventory proceedings at a notary's office or in court; if opened at a notary's office without agreement, those representing more than half of the estate may ask for it to be transferred to the court.

Document checklist

• death certificate, apostilled if issued in Brazil;
• certificates proving the heirs' kinship or marriage, with the prenuptial agreement, if any;
• certificate on the existence of a will in Portugal and CENSEC certificate;
• copy of the will, if any, and proof of the foreign law, where applicable;
• identification documents and NIF of all heirs;
• property tax record (caderneta predial) and land registry certificate for the properties in Portugal;
• documents for bank accounts, vehicles and shareholdings;
• proof of the deceased's habitual residence;
• powers of attorney from the heirs who will not be present.

Common mistakes

• Waiting for the Brazilian inventory to finish before starting in Portugal, while the Stamp Duty deadline is running.
• Assuming that Brazilian law applies just because the deceased was Brazilian, when they lived in Portugal.
• Thinking that the exemption removes the need to notify the Tax Authority.
• Granting general powers of attorney, without powers for the declaration of heirs and partition.
• Forgetting the land registration after the partition and having difficulty selling the property later.

When it makes sense to consult a lawyer

Legal assistance makes a difference when there is doubt about the deceased's habitual residence, a will with a choice of law, minor heirs, heirs living in Brazil, disagreement over the partition or a need to coordinate the Portuguese inventory with the Brazilian one. With lawyers admitted to the OAB and the Portuguese Bar Association (Ordem dos Advogados), Sene & Araújo works in both countries from São Paulo and Albufeira. See our page on inventory and partition or contact us.

• Regulation (EU) 650/2012 (Arts. 4, 10, 12, 20, 21, 22, 34, 63 and 83)
• Decree-Law 4,657/1942 (Decreto-Lei) — LINDB, Brazil's Law of Introduction to the Rules of Brazilian Law (Art. 10)
• Portuguese Civil Code — Decree-Law 47344/66 (Arts. 2102 and 2157 to 2161)
• Portuguese Code of Civil Procedure (Código de Processo Civil) — Law 41/2013 (Arts. 978 to 980, 1082 and 1083)
• Law 117/2019 (inventory proceedings regime)
• Notarial Code — Decree-Law 207/95 (Arts. 82, 83, 85, 86 and 116)
• Stamp Duty Code — Law 150/99 (Arts. 4, 6, 25, 26 and 63-A; item 1.2)
• Land Registry Code — Decree-Law 224/84 (Art. 8-C)
• General Tax Law (Lei Geral Tributária) — Decree-Law 398/98 (Art. 19)
• justica.gov.pt — Inheritance Desk (Balcão das Heranças)
• IRN — Inheritance Desk (Balcão das Heranças): frequently asked questions
• justica.gov.pt — Find out whether a will exists
• Law 13,105/2015 — CPC (Art. 23, II)
• CNJ Resolution 35/2007 (Art. 29)

Sene & Araújo Sociedade de Advogados team. Content prepared and reviewed by the firm's lawyers, admitted to the Brazilian Bar Association (OAB) and the Portuguese Bar Association (Ordem dos Advogados), with offices in São Paulo and Albufeira. The provisions cited were checked against the official sources listed above. Meet the team.