In Brazil, the inheritance right is assured at the level of the Federal Constitution. The infra-constitutional legislation on succession law is regulated, primarily, in book V of the current Civil Code, enacted by Law No. 10406 of January 10, 2002. The current Civil Code divides the succession law into four parts, that is, the general provisions, lawful succession, the testate succession, probate proceeding and partition of succession. The Code of Civil Procedure, enacted by Law No. 13.105 of March 16, 12015, furthermore, containing procedural rules related to succession, standing out, particularly, those regarding international jurisdiction , domestic jurisdiction , inventory and partition of succession , the wills and the codicils , and the estate in abeyance . Finally, again, the Federal Constitution and the Rules of the Civil Code, Decree-Law No. 4657 of September 4, 1942 provide on the governing law in the cases of succession with international connection. It should be emphasized that Brazil has not ratified up to this date international treaties, fact that interferes in its internal legislation, in respect to the succession law.
This work addresses only basic issues of substantial and procedural law related to succession law. Moreover, specific issues that are relevant only in successions with international connection will be reviewed, since the public to which this book is directed is the international public. The matter, however, is being outlined solely under the viewpoint of the Brazilian law. This is intended to afford a more practical viewpoint instead of a theoretical viewpoint of the matter.
In the case of persons that own assets located in more than one country it is advisable to make a succession planning while the person is still alive, in order to avoid post mortem disputes among the successors. The legal system of each State in which the deceased person’s assets are located could be interested in attracting the international jurisdiction of its courts and in applying its laws. Issues regarding the succession planning will not be addressed in this article, since the decision thereof must be individual, according to the personal status of the deceased person and its assets.
24.2. Succession with international connection
To the extent that a succession is international, i.e., presents elements related to more than one country, certain specific legal issues arise, particularly the international jurisdiction of the claimed Court with regard to the governing law and also, occasionally, to the possible recognition of a document rendered by another State such as, for example, a will composed abroad, with the particularity that the deceased person did not live there, but in Brazil at the time of death, or to the recognition of a foreign determination on the partition of succession pursuant to a lawsuit among the deceased person’s heirs. These issues consist of legal issues pertaining by international civil procedural law and private international law.
In this work the author reviews these issues solely under the Brazilian law viewpoint. When, however, a succession has an international connection, all laws that may have an interest in their applying to the specific case must be considered. Specifically, considering the succession planning done while the deceased person was still alive, these aspects are worthy to emphasize.
On the Brazilian Law, the international jurisdiction of the judicial authorities regarding successor’s proceedings is adjusted by the Code of Civil Procedure , and some of these omissions in the Law were resolved by the national jurisprudence and doctrine.
The Brazilian court has exclusive authority to conduct the inventory and partition of succession of the deceased person’s assets located in Brazil, being irrelevant in this case whether the deceased person was a foreigner or lived abroad . Since in such a case the Brazilian courts would have the exclusive international jurisdiction, Brazil does not recognize an administrative determination, rendered abroad, concerning the deceased person’s real and movable property that is located in Brazil . However, the law does not expressly establish whether the Brazilian court has international jurisdiction in the event that such property is not located in Brazil but instead abroad. According to the Supreme Court (STF)’s, the Superior Tribunal of Justice (STJ)’s jurisprudence and the prevailing doctrine, the Brazilian courts do not have international jurisdiction in these cases. Therefore, Brazilian law, regarding to this question, is based on the principle of the plurality of the inheritance courts.
In principle, the Brazilian court will apply to the laws of the country where the deceased person was domiciled. The succession in the property of foreigners that are located in Brazil, however, shall be governed by Brazilian law in benefit of the spouse or Brazilian children, provided the national law that applied to the deceased person is not more favorable. As regards the capacity to descend, the governing law is the law of the heir’s or legatee’s domicile. Finally, considering the property system that the married couple adopted, the laws of the couple’s first domicile shall apply pursuant the Brazilian international private law. In the forensic practice, however, the Brazilian law is frequently applied when the interested party, mainly, usually the supervening spouse, does not demonstrate to the Brazilian judge the contents and term of the foreign law. In the inventory and partition of succession proceeding conducted before the proper Court in Brazil these issues are relevant, inasmuch as only when it is known what part of the spouses’ assets belong to each of the spouses it is possible to identify the deceased person’s assets. It should also be noted in this regard that under Brazilian law the stable relationship between a man and a woman is considered a family entity and it also has reflexes before the succession law.
Of great importance in practice, especially to foreigners, is the issue of the recognition by Brazil of wills that the deceased person drafted abroad . Further, it could be important to a succession proceeding in course in Brazil an administrative determination rendered by a foreign judge or court such as, for example, a decision on an investigation of paternity proceeding filed against the deceased person, accepted and definitively sentenced. In order for a foreign administrative determination to be valid and produce legal effects in Brazil, is indispensable it prior recognization by High Court of Justice (STJ).
24.3. Succession proceeding in court
The succession starts at the place of the deceased person’s last domicile, transferring the inheritance of its property to the heirs at law and executors. However, until the partition of succession, the heirs’ rights as to the ownership and possession of the inheritance will be indivisible and shall be governed by the rules concerning the condominium.
Brazilian law establishes a compulsory inventory and legal partition of succession proceeding having as indispensable a lawyer qualified in the country. In such proceeding the estate is represented as a claimant or defendant by the administrator of the estate and until its appointment the provisory administrator performs such function. The inventory and legal partition of succession proceeding must commence up to sixty days as of the opening of the succession , fact that occurs at the instant of the deceased person’s death, even if presumed dead .
When the deceased person did not make a will or when the interested person does not have legal capacity, and when all the interested persons have legal capacity and consent, then the inventory and partition of succession can be made by deed. This document is supposed to constitute marketable title for the register of deeds. Notwithstanding, the Notary Public will only draft such Deed if all the interested parties are aided by common attorney or attorneys of each one of them, whose qualification and signature shall make part of the notarial act36-A.
The inventory and partition of succession proceeding aims to gather, describe and appraise the deceased person’s property and rights, its discrimination and to payment debts, to pay the inheritance tax and the other acts and arrangements required to liquidate the inheritance, thus ending with the partition of succession or award thereof if the beneficiary descendent is a single person .
In addition to the formal, legal inventory and partition of succession proceeding, there are other types of simplified proceedings, that is, the summary inventory, when all the heirs are full aged and have legal capacity , and the inventory itself, when the property which makes part of the estate does not exceed a certain value provided for in law .
Brazilian law accepts a voluntary partition, provided the heirs are legally capable . Anyway, such partition shall be judicially ratified , as long as the interested persons have not chosen the extrajudicial proceeding and the legal requirements of such kind of inventory and partition of succession proceeding are met in the recorded case.
A new partition proceeding may be opened in regard to property that was not covered by the original partition. This additional partition is referred to as probate de bonis non and it is carried out in the same manner as the inventory and partition of succession proceeding, in the records of the inventory of the deceased person . The following are subject to the probate de bonis non: a.) the concealed decedent’s property; b.) the property of the inheritance that is acknowledged after the original partition; c.) the litigious property, and also the property that is difficult or slow to liquidate; d.) the property located in a remote location of the jurisdiction where the inventory is processed .
The probate de bonis non also expressly refers to concealed decedent’s property. This consists of property that should have been included in the inventory but was not due to deliberate fraudulent act on the part of the administrator of the estate or of any heir who was aware of the existence thereof and omitted it. The current Brazilian law foresees for this event a specific proceeding designated probate action for bonis non. The heirs and the creditors of the inheritance are the lawful parties to file such action. In such event, when the defrauder is the administrator of the estate, it shall lose its appointment as such.
In the legal inventory and partition of succession proceeding, all the issues of law and also the issues of fact are settled (when such proceeding is found proved by document), and only those issues demanding high investigation or depending on further evidences are issued to ordinary proceedings.
In the event the deceased person has left a will, it shall be submitted to the competent court, irrespective of the form thereof, and it also depends on the “abide by” from the court to be enforced.
This rule also applies to wills drafted abroad.
Other special procedural rules of the voluntary jurisdiction apply in the case of estate in abeyance, i.e., the inheritance in which the lawful heirs or the heirs indicated in a will are unknown, in which event the property to be inherited must be gathered and administrated until it is turned over to a duly capacitated descendent or until the vacancy is decreed . The property that comprises the estate in abeyance, according to the jurisprudence, may be acquired through adverse possession until the court decrees the vacancy thereof.
Finally, a suit may be filed by the heir aimed at the recognition of the heir’s inheritance right, aiming to obtain the return of the inheritance or a part thereof against the person (as heir or not in any condition) who owns it . Thus, for example, the heir at law, recognized in court following a paternity investigation suit, who did not participate in the inventory and partition of succession proceeding involving the deceased person’s property, who was his/her deceased father, is lawfully capacitated to file such a suit.
The territorial jurisdiction to rule an inventory, partition, collection, enforcement of the provisions involving the last will and all of the cases in which the estate is a defendant, is basically that of the deceased person’s last domicile.
In the event the persons that are the beneficiaries in the succession (heirs and/or legatees) disagree as to their rights and obligations regarding the estate, the judicial proceeding may last several years in Brazil.
24.4. Lawfull succession and succession by will
Brazilian law distinguishes between lawful succession and testate succession. The first occurs pursuant to the law and applies in the cases where the deceased person did not make a will or if the will is deemed void, rescindable or forfeited or, further, in regard to the property not covered by the will. In the lawful succession is transferred according to the order of hereditary vocation to the heirs at law. Basically, the succession is usually granted to: a.) descendants, concurrently with the supervening spouse, unless the latter was married with the deceased person in the community property system or in the mandatory separate property; or if, in the partial community property system, the deceased person has not left any private property; b.) descendants, concurring with the spouse; c.) collateral relatives . In the absence of descendants, ascendants and supervening spouse, the collateral relatives up to the fourth degree shall be called to succeed. Only in the event of absence of any relative or in the event of waiver of inheritance, the property will be transferred to the Municipality or the Federal District, when located in their jurisdictions, or to the National Government, when located in a federal territory. In regard to the lawful succession, the right of representation must be considered in the cases it applies in accordance with the law.
The difference between an heir at law, has relevance to distinction between and an lawful heir, between a necessary heir and an optional heir, between an heir and a legatee, and between universal or individual successor is only relevant in regard to the testate succession, since in the lawful succession the inheritance is transferred, as previously emphasized, always in accordance with the order of hereditary vocation provided for in law.
Heir at law is the legal heir, i.e., the person belonging to the order of hereditary vocation provided for in law and who succeeds by inheritance due to the order of the law, while designated heir is the person appointed by the testator in his/her last will. Necessary heir is the person that cannot be excluded from the succession at the deceased person’s will, unless the legal requirements for disinheritance are included in the recorded case. One shall notice, however, that the same legal effects arise out of the exclusion of the heir and of the legatee by virtue of incapacity of inherit, which is moved in court by an interested party and declared by a court decision, although its application is not limited to testate succession, as it also covers the heirs called in the succession according to the legal order of hereditary vocation . Optional heir is the heir covered in the order of hereditary vocation, having no right, however, to receive a minimum inheritance quota at the time when the testator establishes so in his/her last will. The lawful succession is always a universal succession; in the testate succession, however, the law allows a universal succession or individual succession, benefiting thus, in the first case, the testamentary heir and the legatee in the second case. Thus, the law only allows the latter quality of beneficiary in the event of testate succession.
In the testate succession the deceased person establishes his/her last will, i.e., by will. Any person legally capable may dispose of all of its property, or a part thereof, through a will. Testamentary dispositions of non-patrimonial features may also be effective, such as, for instance, those as regards funeral procession, even if the testator restricted his/her will only to them. The will consists in a highly personal act. Therefore, the current legislation does not allow the declaration of last will by the deceased person’s legal representatives or attorneys, as well basically prohibits that the decision of the will content and of its enforcement are subject to the discretion of a third party. The will is an revocable act.
In order to be valid the will must fulfill the formal requirements set forth in law since it consists of a highly personal act. Brazilian law establishes as regular forms of will the notarial will, the closed will and the holographic will. Further, Brazilian law exceptionally allows, as special forms, maritime, the aeronautical and the military form . Finally, Brazilian law allows the codicil. This consists of a private act, of and signed, which contains special provisions on the deceased person regarding his/her burials, small handouts to certain people or, indefinitely, to poor people of a certain place, as well as on furniture, clothing or jewels of low value that the deceased person personally used . Through the codicil the deceased person may designate or replace an executor if such person was not designated in his/her will or when the deceased party decided to change the person that he/she previously designated.
When the will is drafted in Brazil it must fulfill the formal requirements that are established in Brazilian law under penalty of not being valid. In the event of a will drafted abroad, it will be recognized in Brazil provided that it fulfills the requirements established in the country where it was drafted.
Note in this regard that Brazilian law does not allow the counter will, whether in the form of simultaneous, reciprocal or correspective.
In the event of existence of necessary heirs, the testator, according to the Brazilian Law, may only dispose of half of the inheritance. The other half is reserved to the necessary heirs, comprising the legitimate portion. Such right is, in principle, lawfully vested on them unless if, for a justified reason stated in the will, the deceased person constitutes on the property of the legitimate portion a clause establishing that it cannot be transferred, pledged or used. In the event the testator leaves the part, or any legacy, which he/she could have disposed of to a necessary heir, this shall not affect the necessary heir’s right to the legitimate portion of the inheritance.
The law vests this capacity on to the descendants, ascendants and spouse, but it does not vest the same benefit expressly on to the deceased person’s companion.
The testator may designate an executor. Otherwise, the implementation of the will shall be incumbent on the supervening spouse and, in the absence thereof, the heir designated by the judge. The executor’s duty is to implement the will and defend its validity. In the cases foreseen in law, the executor shall be entitled to an award based on the net inheritance for the services rendered, in regard to which the executor is obligated to submit records of account .
24.5. Hereditary vocation, acceptance and renunciation of inheritance and assignment of the heir’s quota-part in the inheritance
The hereditary vocation refers to the legitimacy or capacity to succeed, and such right always operates in regard to any person at birth or already conceived at the moment the succession is opened . In the testate succession the law broadens the list of legally capable persons that may be invoked to succeed, namely: a.) the children, including children not yet conceived, of persons designated by the testator, provided that the same are alive when the succession is opened; b.) legal entities; c.) legal entities that are organized at the testator’s will under the form of a foundation . On the other hand, it also indicates the cases in which a person is prevented from being designated an heir and legatee in a will. Thus, for example, the concubine of the married testator cannot benefit, except if the testator, without its fault, has been separated from his spouse for more than five years. The testamentary dispositions in favor of persons that are not legitimate to succeed are void.
The acceptance of inheritance, under Brazilian law, may occur in two ways: expressly or tacitly. Upon acceptance the conveyance of the inheritance to the heir becomes definitive, effective back to the opening of the succession. The renunciation of inheritance, on the other hand, requires a special manner in order to be valid, i.e., an express statement set forth in a public act or made in court. Both the acceptance and the renunciation of inheritance cannot be partial, conditional or subject to a clause and the respective acts that are performed in conformity with the law are irrevocable.
Brazilian law allows the heir to assign its share in the inheritance to another heir or third party provided that the juristic act fulfills all the legal requirements. As regards the form that the assignment must vest, the law requires the form of a deed for such assignment.
24.6. Donations by the deceased person while alive and future succession
Under Brazilian law inheritance cannot be subject of an inter vivos contract. It does allow, however, donation between ascendants and descendants or by one of the spouses to the other, provided that the property system that the couple adopted allows this. In this case, the donation will be considered in the donator’s succession, resulting in an advancement of the inheritance right vested on the donee.
As a rule, the descendants that concur in the succession of a common ascendant are obligated to disclose the value of the donations received from the deceased person while he/she was alive, under penalty of concealment. This disclosure consists of the legal institute designated collation. Notwithstanding, the donator may, at its discretion, waive collation, either by way of will or in the juristic act that led to the donation, upon an express, written statement.
In regard to the necessary heir the waiver of collation produces legal effects only to the extent of his/her disposable quota, i.e., the hereditary quota that must be preserved in favor of the necessary heir.
Furthermore, such quota cannot be affected by donations to third parties that are not heirs at law, or testamentary heirs and legatees, benefited in the deceased person’s will. Thus, the donation in relation to the part exceeding that one disposable by the donator in his/her will (at the time of the concession) is specifically nullified as well.
Summarizing, the donator cannot dispose of, through a donation, more than half of his/her patrimony if he/she has necessary heirs. One half of his/her patrimony, in this case, remains unavailable since it consists of the necessary heirs’ legitime. Accordingly, nobody may donate what it cannot bequeath.
Any donation that the deceased person makes while alive capable to affect the necessary heirs’ legitime at the time when it was made is referred to as donatio inofficiosa, or undutiful gift. There is a controversy if the relevant suit against the donator may be filed by the necessary heirs while he/she is alive. But, admitting this possibility, the moment as to the concession is deemed pertinent for purposes of calculating the excess.
To the extent that the provisions of last will set out in the will are accountable for exceeding the deceased person’s disposable part, the necessary heirs are legitimated to claim the reduction thereof only in the probate proceeding and partition of the succession.
In the context of a succession, the tax on causa mortis transmission and donation of any property or right (ITCMD), must be considered. The States and the Federal District levy this tax . The maximum tax rate that may be applied is eight per cent . In the State of São Paulo, for example, Law No. 10,705, of Dec. 28, 2000, which provides on the levying of the ITCMD tax and also Decree No. 45,837 of June 4, 2001, which regulates the matter addressed in the aforesaid state law.
Author: Beat W. Rechsteiner
Rechsteiner Sociedade de Advogados
Alameda Santos 880, conj. 31, Edifício Paulista Atrium
01418-100 São Paulo – SP
Phone: +55 (11) 3149 6700
Fax: +55 (11) 3284 6509
E-mail: [email protected]