Dealing with death and the division and property is usually a delicate, tiring, and bureaucratic process. It can be, however, facilitated by the creation of a last will while the person is alive.
Because it’s not too common in Brazil compared to other countries, the rules which regulate wills may not be widely disseminated and known by the population.
Therefore, in the text below, we are going to explain the types of wills in Brazil, how they must be made, and what are the advantages and differences, among other subjects related to the theme.
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Author: Lucas Gomes Furtado
What is a last will and how does it work?
A last will is nothing more than a written document through which one person, named a testator, can register their wishes in regard to the division of their property after their death.
Aside from property, a testator can also indicate other subjects in the will, such as those related to their funeral or burial, choose legal guardians, or even make recommendations or conditions, for instance.
Any natural person can make a last will, as long as they are at least 16 years of age and have good physical and mental health to perform the act.
Also, it’s important to mention that only that person can make their own will and it’s not possible to be made by proxy or any other sort of representation.
Most types of wills need to be registered in a registry office for them to be considered valid.
Therefore, in general, a testator must go to a registry office with some documents, and witnesses, who can neither be family members nor be benefited from the will in any way.
While in the registry office, the testator must show:
- their identity document and CPF;
- the identity documents and CPF from the witnesses;
- information about their marital status, address, and profession.
It’s important to remember that each registry office may require different documents that are not listed above, so it’s recommended that the testator get informed previously with the registry office to avoid any problems.
Even after the registration in the registry office, the testator can freely change their will in relation to some clauses or all clauses, and if that is the case, they must create a new will to replace the former one.
What can be included in a last will in Brazil? What if there is property abroad?
As it was mentioned before, it’s possible for the testator to communicate the division of assets and also mention other subjects that they wish.
However, in Brazil, there are some limitations related to the amount of property that the testator is able to freely distribute to whomever they wish in their will.
This happens because Brazilian law aims to protect the “necessary heirs”, which are entitled to at least 50% of the amount of property from the deceased after their death.
According to the law, the necessary heirs are:
- one’s descendants (children, grandchildren, great-grandchildren etc.);
- one’s ascendants (parents, grandparents, great-grandparents etc.);
- one’s spouse.
This means that the testator can only leave up to 50% of their property to anyone they wish in a will, once the remaining 50% will necessarily be divided among the necessary heirs.
Likewise, it would only be possible to leave 100% of their property in a will for any person they wish if the testator does not have any living necessary heirs.
It’s also possible that the testator has some property in another country. Could these assets be included in a will in Brazil? Well, it’s not such an easy question to answer.
After all, the laws from the country where the property is located are going to regulate its division, and not the Brazilian laws, even if the owner/testator is Brazilian.
In other words, the legislation from this other country may consent to a free division of property without any obstacle, but it’s also possible that the local law would be more restrictive in regard to making a will.
Therefore, the assistance of a lawyer who has knowledge about foreign laws is crucial for the testator to be sure that the instructions of their will are going to be followed properly after their death.
At last, a more recent subject that can also be included in a will is digital inheritance, which refers to assets with financial value, such as cryptocurrency, e-books, games, and monetized accounts in social media, as well as assets with sentimental value, like photos, videos, and emails, for instance.
What are the main types of will in Brazil and which one should I choose?
Nowadays there are three main types of will in Brazil. These are:
- public will;
- closed will;
- private will.
The public will is the most notorious and most used type in the country, as it must be made in a registry office in the presence of two witnesses, and it must be read aloud by the notary public before it’s signed.
It’s a secret will, because only the testator, the witnesses, and the notary public will be aware of its content, which is only going to be revealed to the heirs after the death of the testator.
It’s also the safest type of all, as it’s necessarily going to be registered in the notary public record book, at the registry office, according to Brazilian law.
Therefore, for the reasons mentioned above, this type is usually the one recommended to whoever would like to express their wishes in a will.
On the other hand, the closed will must also be read – albeit silently – at the registry office by the notary public, and it will be approved in the presence of two witnesses.
Afterward, the envelope will be sewn and sealed at the registry office, and it will be returned to the testator. A note about the existence of a closed will in that person’s name will be registered at the registry office.
Thus, after the death of the testator, the document will be presented to a judge by the heirs, and it will be read aloud in front of all of them.
This type of will is considered fragile or even a bit unsafe due to the possibility that the seal might break early or that another requirement is not fulfilled, which may result in the will being considered void.
Finally, the private will can be made by the testator or by a trusted third person, in writing or electronically, in any place, without the need of going to a registry office.
After its conclusion, it must be read aloud and signed by three witnesses this time, who cannot be benefited from the will in any way.
This is usually the most inexpensive type of all because there are no registry office fees but it can also be considered unsafe because there will not be any public record of its existence.
Besides that, after the death of the testator, a judge must confirm the private will and the signatures of the witnesses for the will to take effect.
Can I make a will virtually? Is the closed will made virtually reliable?
Yes. Since 2021, it’s now possible for one person to make a will completely virtually, following the same rules for each type of chosen will.
This became a reality through the e-Notariado platform, through which the person will request a digital certificate in order to sign the will electronically.
After that, they will need to schedule a videoconference with the registry office. The testator, the required witnesses, and the notary public must be present to read the content and approve the will.
Therefore, it’s possible for a closed will to be made virtually, although some of the problems of the closed will may persist as if it was made in person.
That is because the closed will is going to remain in the possession of the testator, who must keep it safe to protect it from being unsealed early, and it’s still going to be unsealed by a judge in front of the heirs after their death.
What are the advantages and differences of making a will in Brazil?
Although it still is not a very common practice in Brazil, there are several advantages when it comes to planning a will.
Perhaps the most obvious advantage is the possibility of leaving your assets to any natural or legal person that you may wish, according to your own feelings.
If there is no will, the property must be distributed among the heirs according to what is established by the law, and the assets are not going to go to other people who were special in the life of the deceased.
Also, a well-made will may be used as a simpler way to solve property issues after death once the division of property was already determined by the testator.
Therefore, as long as all the rules are followed, a will can prevent fights and arguments in the family, which often happen in inventory judicial lawsuits.
Another reason to consider a will is its low cost, which only includes registry office fees, in comparison to a lawsuit, in which all fees and attorney’s fees must be paid.
With respect to differences, it’s known that Brazil has specific laws about wills that are not necessarily the same in relation to other countries.
A classic example is the limitation of only leaving up to 50% of one’s assets if there are necessary heirs, who have to, necessarily, receive the remaining 50%.
This system is common in Europe and South America and aims to guarantee that the heirs closest to the deceased are entitled to a part of the inheritance.
Portugal and the United States
In Portugal, for example, this limitation may be even higher: the legitimate heirs, as they are called in Portuguese law, must receive two-thirds (66%) of the total property depending on the case.
It means that, in this situation, the testator is only able to leave up to 34% of their total property to other people in a will.
In the United States, the system works quite differently because it’s common for people to make a will and there is no limitation regarding one’s estate, so the testator can leave all assets to whomever they wish.
There seems to be one legal exception, however: the testator must leave a fair amount to pay for support to their spouse or close relatives in case they really need it.
Finally, due to the law differences among countries, it’s important that the testator is fully aware of the rules which are going to be applied wherever their property is located.
Can a condition be included in a will in regard to the property?
Yes, it’s perfectly possible to create special conditions in a will.
This usually happens when the testator fully knows the people to whom he wishes to leave assets and decides to establish specific rules for the property to be given to them.
As an example, the testator may decide to leave a vehicle to a certain person, but only after they get a driver’s license, or they may determine that someone can live in their house but only until they graduate from college.
Besides that, the testator can create clauses that may prohibit these assets from being sold, pawned, used as collateral, or divided with a spouse in case of a divorce.
In general, the testator creates conditions in a will to avoid the property they have acquired throughout their life getting dilapidated by those who are going to inherit them, or when they want to make sure that these people will keep a promise made to them in life.
Logically, the conditions in a will must be created according to the Brazilian law, in good faith, and along with morality, for them to be considered valid.
Can I instruct my lawyer to disclose some of my personal issues or secrets after my death?
According to the statute of the Order of Attorneys of Brazil (OAB), the conversation between a client and a lawyer are to remain in confidence and must not be shared even after the death of the client, except for due cause or personal defense.
That is because, with confidentiality, it’s possible for the client to fully explain their situation and obtain the best assistance from the lawyer for their case.
This confidentiality rule is a reality in many different professions and, if there is a violation, it may result in the disciplinary, civil, or even criminal punishment of this professional.
It’s allowed for a lawyer, however, to help a client in regard to how these secrets can be disclosed according to the law after they die, such as by means of a will.
Speaking of which, it’s not uncommon for testators to add notes to their will concerning the acknowledgment of paternity, the disinheritance of a child, and other information that would only be known after their death.
Thus, although having a lawyer is not mandatory to make a will, the assistance of a specialized lawyer may be of great value for it to be created accordingly.
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