24.1. Applicable Law
In Brazil, succession law is primarily governed by Book V of the Civil Code (Law No. 10,406 of January 10, 2002). The Civil Code organizes the subject into four parts: general provisions, intestate succession, testamentary succession, and probate and distribution.
Procedural aspects relating to succession are governed by the Code of Civil Procedure (Law No. 13,105 of March 16, 2015), which regulates international and territorial jurisdiction, probate and distribution proceedings, provisions concerning wills and codicils, as well as the legal regime applicable to unclaimed and vacant estates.
Finally, the Federal Constitution and the Law of Introduction to the Rules of Brazilian Law (Decree-Law No. 4,657 of September 4, 1942) establish the criteria for determining the applicable law in cases involving succession with international elements. Brazil is not currently a party to relevant international conventions aimed at harmonizing substantive or procedural succession law. Therefore, such matters remain governed by domestic rules and the principles of Brazilian private international law.
24.2. Succession with an International Element
When succession involves elements connected to more than one country, specific issues arise concerning international jurisdiction, the applicable law, and the possible recognition of foreign acts or judicial decisions.
Pursuant to Article 23, II, of the Code of Civil Procedure, Brazilian courts have exclusive jurisdiction over probate and distribution of assets located in Brazil, regardless of the nationality or domicile of the deceased. Accordingly, foreign decisions directly affecting assets located in Brazilian territory have no effect in Brazil.
On the other hand, the case law of the Superior Court of Justice has established that Brazilian courts lack jurisdiction to probate or distribute assets located exclusively abroad, thus adopting the principle of plurality of probate proceedings.
As a rule, the succession is governed by the law of the deceased’s domicile, pursuant to Article 10 of the Law of Introduction to the Rules of Brazilian Law. Exceptionally, the succession of assets belonging to a foreigner and located in Brazil shall be governed by Brazilian law for the benefit of the Brazilian spouse or children, whenever such law is more favorable to them.
With regard to the matrimonial property regime, the law of the couple’s first matrimonial domicile applies. It should also be noted that stable unions (unmarried partnerships) are recognized as family entities under Brazilian law and produce succession effects. According to the Federal Supreme Court’s binding precedent (Theme 809), the surviving partner in a stable union has the same succession rights as a spouse, and the rules of Article 1,829 of the Civil Code apply, including the status of forced heir.
It is also relevant to address the recognition in Brazil of wills executed abroad and decisions rendered by foreign authorities, such as judgments establishing paternity, which may affect succession proceedings pending in Brazil.
As a rule, for a foreign decision to produce legal effects in Brazil, it must first be recognized (homologated) by the Superior Court of Justice, pursuant to the Federal Constitution and the Code of Civil Procedure. Exceptionally, foreign decisions of a purely declaratory nature may produce effects without prior recognition, provided they do not require enforcement within Brazilian territory.
24.3. Probate Proceedings
Succession is opened at the deceased’s last domicile, and the estate is immediately transferred as a single legal entity to the heirs. Until distribution is completed, the heirs’ rights to ownership and possession of the estate remain indivisible and are governed by the rules applicable to co-ownership.
Probate proceedings aim to collect, describe and appraise the deceased’s assets and rights, verify and settle estate debts, assess and pay applicable taxes, and carry out all measures necessary for the liquidation of the estate, culminating in the distribution of assets or, where there is only one successor, adjudication.
Brazilian law provides for: (i) judicial probate proceedings; or (ii) extrajudicial probate, conducted by public deed, when all heirs are legally capable and in agreement. In both cases, the assistance of a lawyer is mandatory.
Currently, extrajudicial probate is also permitted even when a will exists, provided that the will has been previously registered with the court or judicial authorization has been obtained, in accordance with the case law of the Superior Court of Justice and regulations issued by the National Council of Justice.
Probate must be initiated within two months from the opening of the succession, which occurs at the time of death, even if presumed. Failure to comply with this deadline does not prevent the initiation of probate but may result in tax penalties, depending on applicable state law.
In addition to ordinary probate proceedings, the Code of Civil Procedure provides simplified procedures, such as summary administration when all heirs are capable and in agreement, and simplified administration when the value of the estate does not exceed the statutory threshold.
If assets were not included in the original distribution, a supplementary distribution may be initiated with respect to: (i) concealed assets; (ii) discovered after distribution; (iii) disputed or difficult-to-liquidate assets; and (iv) assets located outside the jurisdiction of the probate court. With respect to concealed assets, i.e., assets that should have been included in the inventory but were intentionally omitted by the executor or by an heir, the appropriate remedy is a specific legal action for recovery of concealed estate assets.
Within the framework of voluntary jurisdiction, rules also apply to unclaimed estates, i.e., when the heirs are unknown. In such cases, the assets are collected and administered until heirs come forward or the estate is declared vacant. Until a judicial declaration of vacancy, case law admits the possibility of acquiring such assets through adverse possession.
Territorial jurisdiction for probate, distribution, enforcement of testamentary provisions, and actions in which the estate is a defendant generally lies with the court of the deceased’s last domicile.
24.4. Intestate and Testamentary Succession
Before addressing succession itself, it is important to distinguish between: (i) statutory heirs and testamentary heirs; (ii) forced heirs and non-forced heirs; and (iii) heirs and legatees.
A statutory heir is one called to succeed by law according to the statutory order of succession, whereas a testamentary heir is appointed by the testator through a will. A forced heir is one who cannot be excluded from succession by testamentary disposition, except in the cases provided by law. A non-forced heir is one who belongs to the statutory order of succession but is not entitled to a reserved share when the testator disposes of the disposable portion by will. Finally, an heir succeeds to the estate as a whole or to an ideal fraction thereof, whereas a legatee receives a specific asset or right.
Intestate succession arises directly by operation of law, and the estate is transferred according to the statutory order of succession: (i) descendants, together with the surviving spouse; (ii) ascendants, together with the spouse; (iii) the surviving spouse; and (iv) collateral relatives.
Collateral relatives up to the fourth degree inherit only in the absence of descendants, ascendants, and spouse (or surviving partner).
Collateral relatives up to the fourth degree inherit only in the absence of descendants, ascendants, and a surviving spouse or partner. If there are no heirs entitled to succeed, or if the inheritance is renounced, the estate escheats to the Municipality or the Federal District where the assets are located, or to the Federal Government if the assets are situated in federal territory.
Intestate succession is always universal, meaning that the estate is transferred as a whole to the heirs.
In testamentary succession, the law allows succession either by universal title (heirs) or by singular title (legatees). Through a will, the testator may dispose of all or part of his or her assets, subject to legal limitations.
Where forced heirs exist, the testator may freely dispose only of half of the estate, while the remaining half constitutes the reserved portion (legitime). Under Brazilian law, forced heirs include descendants, ascendants, the spouse, and the surviving partner in a stable union.
Brazilian law recognizes three ordinary forms of wills: public, closed, and private. Special forms are also allowed in exceptional circumstances (maritime, aeronautical, and military wills). The law also recognizes the codicil, a private document intended for minor dispositions, such as funeral instructions, small gifts, or the allocation of personal items.
24.5. Capacity to Inherit, Acceptance, Renunciation, and Assignment of Inheritance Rights
Capacity to inherit refers to the legal entitlement to succeed. Persons who are already born or conceived at the time of the opening of the succession are eligible to inherit. In testamentary succession, the law expands the range of potential beneficiaries to include: (i) children not yet conceived of persons designated by the testator, provided that such persons are alive at the time the succession is opened; (ii) legal entities; and (iii) legal entities to be created in accordance with the testator’s instructions, typically in the form of a foundation.
Brazilian law also establishes situations in which a person is legally barred from receiving under a will. For example, the concubine or concubine of a married testator may not be designated as a beneficiary, unless the testator, without fault, had been separated in fact from his or her spouse for more than five years. Testamentary provisions made in favor of persons who lack legal capacity to inherit are null.
Acceptance of the inheritance may be express or implied. Once accepted, the transfer of the estate becomes definitive and retroactive to the date of death. Renunciation must be made formally by public instrument or court record. Acceptance and renunciation cannot be partial, conditional, or subject to a term, and are irrevocable.
Inheritance rights may be assigned by the heir to another heir or to a third party, provided that the legal requirements are met and the assignment is executed by public deed.
24.6. Lifetime Gifts and Future Succession
Future inheritance cannot be the subject of an inter vivos contract, and so-called pacta corvina (agreements concerning the inheritance of a living person) are prohibited. However, gifts between ascendants and descendants, or between spouses, are permitted, provided that the applicable matrimonial property regime allows it. In such cases, the gift is deemed an advance on the heir’s reserved portion and must be considered in the donor’s succession.
As a general rule, descendants who compete in the succession of a common ascendant are required, at the time of distribution, to account for the value of any gifts received from the deceased during his or her lifetime, under penalty of concealment. This requirement is known as collation.
The donor may waive collation expressly, either in the deed of gift or by will. However, such waiver is effective only within the limits of the disposable portion.
A gift exceeding the disposable portion is considered an excessive (inofficious) gift. The excess is determined based on the donor’s assets at the time of the gift, considering previous gifts, with values updated at the time of succession, in accordance with the case law of the Superior Court of Justice.
Similarly, testamentary dispositions exceeding the disposable portion may be reduced upon request by forced heirs, following the statutory order of reduction.
24.7. Taxes
In the context of succession, the Tax on Transfers by Death and Donations (ITCMD) must be considered, which falls within the jurisdiction of the States and the Federal District.
The Federal Constitution establishes that the maximum rate of this tax shall be set by a resolution of the Federal Senate, currently limited to 8%.
In cases involving international elements, the Federal Supreme Court (Theme 825) has held that States and the Federal District may not impose ITCMD on transfers of assets located abroad or when the donor or deceased was domiciled abroad, until a federal complementary law regulating the matter is enacted.
Lautenschlager, Romeiro e Iwamizu Advogados
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