Losing a friend or a family member is an experience that can’t be translated into words. But chances are that, before the wounds can even start to heal, someone in the family will have step forward and face the tasks related to the inheritance of the deceased. As life must go on.
If your loved one left assets abroad, and specially in Brazil, you will find out soon enough that your life got a bit more complicated.
To make things more interesting, Brazil is a country that loves it’s own bureaucracy. A big part of our energy is spent in finding a way through the jungle of (sometimes conflicting) rules and getting a whole string of unnecessary (but mandatory) documents for all aspects of life. Probates and Wills are no exception, as they are definitively not a straight forward matter here.
Do I really need to start a probate in Brazil?
If the deceased left assets in Brazil, the answer is Yes. You NEED to start a probate here, as Jurisdiction over real state in its own territory is considered a matter of Sovereignty. Be aware that a probate done abroad will not be automatically applicable here and, depending on the situation, it can even be considered void. We strongly recommend a consultation with a Brazilian lawyer before you set things in motion.
Do I need a lawyer to assist me in a Probate in Brazil?
Yes, as this is a legal requirement here. If you have a probate in Brazil, you HAVE TO (attain)retain an attorney for this job.
What type of procedure are probates in Brazil
There are two main types of probates, according to the Brazilian Law: “Judiciais” (i.e., that requires the intervention of a judge in a court of law) or “extrajudiciais” (administrative probates, done by a notary). The former is much more complex, time consuming and expensive than the latter, and it will be mandatory in three situations: 1) if there are underaged heirs involved (below 18 years of age); 2) if there is conflict among the heirs that makes impossible to reach an agreement about the division of the assets (in this situation, mediation can be a good alternative to facilitate dialogue and resolve the conflict); 3) if there is a will to be validated.
In some states (and São Paulo is among them), situations number “3” can be dealt with through an intermediate solution. The will must be validate in a court of law, but after that the probate proceedings can be done via notary.
Do I need to have a Brazilian Will if I have assets there?
It’s not mandatory, but depending on your situation, this could be a good idea… or a bad one.
The primary objective of any will is to effectively communicate the wishes of the deceased person, and to achieve this goal it must be regarded as valid. As said before, under the Brazilian legal system, wills signed abroad must be first validated by a Brazilian authority (in this case, a Judge), who will check its formal regularity according to the Laws of the country of origin.
In the realm of inheritance Law, each Country has its own peculiarities. The laws in Brazil are very different to those in the United States, United Kingdom or other Common Law countries. There are important differences even when compared to the law of Countries belonging to the Civil Law tradition (like Germany, Italy or France). Therefore, If you have assets in Brazil and other countries, and you are not a Brazilian national, these differences need to be carefully considered in the preparation of your will.
In Brazil, for example, a person does not have full freedom to distribute all his or her assets, and must “reserve” half of it to the so called "necessary heirs" (ascendants, descendants and spouse). This forced heirship is a rule that must be clarified before you make a decision, because understanding this concept may prevent future problems and give you insights about the preparation of your will.
One of the alternatives is to make a separate Brazilian will dealing only with your assets in Brazil. Please, always consult a specialist lawyer for the best advise for your individual circumstances.
Inheritance tax in Brazil
The inheritance tax is always due in Brazil if the deceased had assets here. The good news is that Brazilian inheritance tax is quite low when compared to many countries in the world: 4% of the value of the assets.
However, depending of the Country of domicile of the deceased in the moment of death, the government of this Country may also be entitled to collect inheritance tax. We strongly advise you to check the situation with a local specialist solicitor.
We are a boutique business-law firm advising local, national, and international clients from our office in São Paulo, Brazil. If you would like to discuss any particular matter in our field of expertise, we would be happy to hear about it.