Wills in Brazil and Portugal

Who can make a will

• In Brazil: persons over sixteen years of age may make a will; in addition to those lacking legal capacity, those who, at the time of the act, do not have full discernment may not make a will (Art. 1,860 of the Civil Code). Supervening incapacity does not invalidate a will already made (Art. 1,861).
• In Portugal: anyone not declared incapable by law may make a will (Art. 2188 of the Portuguese Civil Code). Minors and adults under a supported decision-making measure (maiores acompanhados) are incapable, when the court order so determines (Art. 2189). Capacity is assessed as of the date of the will (Art. 2191).

When there is a foreign element, the capacity to make a will is part of the substantive validity of the will and, before Portugal, is governed by the law that would have applied to the succession had the testator died on the date of the will (Arts. 24 and 26 of Regulation (EU) 650/2012). In Brazil, capacity is governed by the law of the person's domicile (Art. 7 of the LINDB).

Forms of will in Brazil

The ordinary wills are the public, the sealed and the private will (Art. 1,862 of the Civil Code):

• Public: written by the notary in the notarial book according to the testator's statements, read aloud in the presence of two witnesses and signed by all (Art. 1,864).
• Sealed: written by the testator, or by another person at the testator's request, and approved by the notary in the presence of two witnesses; once approved and sealed, it is delivered to the testator (Arts. 1,868 and 1,874). It may be written in a foreign language (Art. 1,871).
• Private: handwritten or produced mechanically, read and signed in the presence of at least three witnesses (Art. 1,876). After death, it requires judicial confirmation (Arts. 1,877 and 1,878).

The law also provides for the codicil, for dispositions of small value (Art. 1,881), and the special maritime, aeronautical and military wills (Art. 1,886).

Forms of will in Portugal

• Public: written by a notary in the notarial book (Arts. 2204 and 2205 of the Portuguese Civil Code).
• Sealed: written and signed by the testator, or by another person at the testator's request, and approved by a notary; the testator may keep it, entrust it to a third party or deposit it at a notary's office (Arts. 2206 and 2209). Those who cannot read, or are unable to read, may not make a will in this form (Art. 2208).
• International: Portugal adopted the Uniform Law on the Form of an International Will (Decree-Law 252/75), and the Notarial Code subjects the approval, deposit and opening of these wills to rules parallel to those for the sealed will (preamble and Arts. 109 to 115). The Brazilian Civil Code does not provide for this form among the ordinary wills.

Portugal has no equivalent to the Brazilian private will: apart from the special forms (military, maritime, aeronautical and in the event of a public calamity, Arts. 2210 to 2220), a will requires the involvement of a notary. Both countries prohibit joint wills, made by two people in the same act (Art. 1,863 of the Brazilian Civil Code; Art. 2181 of the Portuguese Civil Code).

In both countries, the testator may freely dispose of only part of their assets when they have forced heirs (herdeiros necessários in Brazil, herdeiros legitimários in Portugal). The law governing the succession determines which rule applies.

In Brazil

• The forced heirs are the descendants, the ascendants and the spouse (Art. 1,845 of the Civil Code).
• The forced share is always half of the estate (Art. 1,846); the other half is the disposable portion (Art. 1,789).
• The forced share cannot be included in the will (Art. 1,857, § 1). Clauses of inalienability, unattachability and non-communicability on it are valid only with stated just cause (Art. 1,848).

In Portugal

• The forced heirs (herdeiros legitimários) are the spouse, the descendants and the ascendants (Art. 2157 of the Portuguese Civil Code).
• The forced share varies: half for the spouse alone (Art. 2158); two-thirds for the spouse and children; half for an only child and two-thirds for two or more children, with no spouse (Art. 2159); two-thirds for the spouse and ascendants; half or one-third for ascendants alone, depending on the degree (Art. 2161).
• The calculation takes into account the assets existing at the date of death, gifted assets, expenses subject to collation and debts (Art. 2162). The testator may not impose charges on the forced share or designate, against the heir's will, the assets that make it up (Art. 2163).

In practice

With a spouse and children, the disposable portion is half in Brazil and one-third in Portugal. A will designed only for Brazilian law may therefore be reduced if the succession comes to be governed by Portuguese law, and vice versa. Lifetime gifts are taken into account in both systems.

Before Portugal: Art. 22 of the Regulation

Portugal applies Regulation (EU) 650/2012 to successions opened on or after August 17, 2015 (Art. 83). In the absence of a choice, the law of the deceased's habitual residence at the time of death governs (Art. 21). Under Art. 22, a person may choose, for their entire succession, the law of the State of which they are a national at the time of the choice or of death; a person with more than one nationality may choose any of them.

• The choice must be made expressly in a disposition of property upon death, such as a will, or be demonstrated by its terms (Art. 22(2)).
• The chosen law then governs, among other matters, the disposable portion and the forced share (Art. 23(2)(h)).
• Amending or revoking the choice requires meeting the formal requirements for amending or revoking a disposition of property upon death (Art. 22(4)).

From Brazil's standpoint: the LINDB

Brazil does not apply the Regulation. Under Art. 10 of the LINDB, succession is governed by the law of the country in which the deceased was domiciled, whatever the nature and location of the assets. § 1 protects the Brazilian spouse and children with regard to assets of foreigners located in Brazil, when the deceased's personal law is less favorable to them. The LINDB does not provide for a choice of law by the testator.

What this means

A Brazilian living in Portugal who chooses Brazilian law in a will will have that choice respected in Portugal. In Brazil, however, the tendency is to apply the law of the domicile, which would be Portuguese law. The choice may thus result in one law being applied in one country and another law in the other, especially as regards the forced share. For this reason, the decision whether or not to choose the law should be made in light of where the assets and the heirs are.

The Hague Convention of October 5, 1961 on the form of testamentary dispositions does not apply between Portugal and Brazil: according to the official status table of the Hague Conference, Portugal signed it in 1967 without ratifying it, and Brazil is not a party.

In Portugal: Art. 27 of the Regulation

Under Art. 27 of Regulation (EU) 650/2012, a written will is formally valid if it complies with the law:

• of the State where it was made;
• of a State of which the testator was a national, at the time of the will or of death;
• of the State of the testator's domicile or habitual residence, at either of those two times;
• of the State where the property is located, as regards real estate.

The same rule applies to a will that amends or revokes an earlier one (Art. 27(2)).

For Portuguese citizens, including dual nationals, Art. 2223 of the Portuguese Civil Code requires a will made abroad to have followed a solemn form in order to take effect in Portugal. As a precaution, those with Portuguese citizenship should prefer the public or sealed will to the Brazilian private will.

In Brazil

The opening, registration and fulfillment of the will take place in court (Arts. 735 to 737 of the CPC), and the confirmation of a private will falls within the exclusive jurisdiction of the Brazilian courts (Art. 23, II). A will executed in Portugal may have to be submitted to the Brazilian judge, with an apostille, in order to take effect with respect to assets located in Brazil.

A single will may be enough, but with significant assets in both countries, two coordinated wills usually make the inventory in Brazil and the declaration of heirs in Portugal easier. Each is executed in the local form and deals with the assets located in that country.

Drafting considerations

• Revocation clause: a general revocation of "all previous wills" may affect the will made in the other country. The clause should be limited to the assets covered by each instrument (Art. 1,970 of the Brazilian Civil Code; Arts. 2312 and 2313 of the Portuguese Civil Code).
• Defining the assets: state precisely what each will covers, including assets that may be acquired later.
• Consistent choice of law: if there is a choice of law (Art. 22 of the Regulation), it should appear in identical terms in both wills, or in one of them without being contradicted by the other.
• Forced share: the dispositions in both wills, added to lifetime gifts, must respect the forced share under the law that will actually govern the succession.
• Executor: it may be useful to appoint different people for each country, with clearly defined roles.

In Brazil, the existence of a will requires it to be opened and ordered to be fulfilled in court; the inventory may proceed before a notary only if the judge expressly authorizes it and all interested parties have full legal capacity and are in agreement (CNJ Resolution 35/2007, Art. 12-B). See also our page on international succession.

In Portugal

• Notaries report to the Central Registry Office (Conservatória dos Registos Centrais) public wills and the instruments of approval, deposit or opening of sealed and international wills, which form part of a general index (Arts. 187 and 188 of the Notarial Code).
• During the testator's lifetime, the information is confidential and is provided only to the testator or to an attorney-in-fact with special powers; after death, it may be requested by anyone (Art. 207).
• The "certificate on the existence of a will, deed of renunciation or repudiation of an inheritance or legacy" may be requested online or at the Central Registry Office in Lisbon. According to the justica.gov.pt portal, the online request costs 25 euros; for a person who died abroad, the death certificate must be attached.

In Brazil

• Public wills and the instruments of approval of sealed wills are reported to the Central Online Registry of Wills (Registro Central de Testamentos On-Line – RCTO) of CENSEC. For inventory proceedings, in court or before a notary, the CENSEC certificate on the non-existence of a will is mandatory (CNJ Provision 56/2016, Arts. 1 and 2).
• Notarial fees are set by the law of each State (Art. 1 of Law 10,169/2000 (Lei)), so the cost of a will varies from State to State.

On this page we do not state the amounts of Portuguese notarial fees or Brazilian notarial charges for executing a will: they should be confirmed with the chosen notary's office at the time of the act.

A will may be revoked at any time, and the testator cannot waive this right (Art. 2311 of the Portuguese Civil Code; Art. 1,858 of the Brazilian Civil Code).

• In Portugal: express revocation is made in another will or in a public deed (Art. 2312). A later will without express revocation revokes the earlier one only to the extent of any incompatibility (Art. 2313). Disposal of the bequeathed item revokes the legacy (Art. 2316).
• In Brazil: a will is revoked in the same manner and form in which it may be made, in whole or in part (Arts. 1,969 and 1,970). A sealed will opened or torn by the testator, or with the testator's consent, is deemed revoked (Art. 1,972).

When to review

• Change of country of residence: may change the law applicable to the succession (Art. 21 of the Regulation; Art. 10 of the LINDB) and, with it, the forced share.
• Divorce: in Portugal, dispositions in favor of the spouse lapse if, at the date of death, the spouses are divorced or judicially separated as to persons and property (Art. 2317(d)).
• New child: in Brazil, if a descendant is born whom the testator did not have or did not know of, the will is revoked by operation of law (rompimento do testamento) in all its dispositions, if the descendant survives the testator (Art. 1,973).
• Purchase or sale of significant assets, marriage, birth of grandchildren or change of citizenship.

When revoking or amending a will in one country, it is necessary to check the effects on the will made in the other country and on any choice of law (Art. 22(4) and Art. 27(2) of the Regulation).

With offices in São Paulo and Albufeira, Sene & Araújo assists with wills and estate planning in Brazil and Portugal.

1. Review of the family and asset situation: nationalities, residence, matrimonial property regime, heirs and assets in each country.
2. Analysis of the applicable law in both systems and of the consequences of a possible choice of law, comparing the forced share in each scenario.
3. Drafting of coordinated wills in Brazil and Portugal, and review of existing wills.
4. Assistance with the act at the Brazilian notary's office or the Portuguese notary's office.
5. After death: locating the will, opening and fulfillment in Brazil, inventory proceedings and declaration of heirs and partition in Portugal.

For a broader succession strategy, including gifts and asset structuring, see the estate planning page.