N06E - Wills
Category : Notary - Legal
N06E - Wills
Introduction
This document is one of the series “Dying with Dignity”. It covers the process of drawing up a Will for Portuguese assets and does not address possible inheritance tax liabilities with the mother country. For the latter, you should contact a competent financial advisor or seek advice from your relevant tax authority.
Many expatriates have heard horror stories pertaining to the Portuguese conventions on inheritance or succession. This bulletin attempts to set the record straight and discusses the options available and their implications for the administrator and the bequeathed. In doing so, any recommendations put forward are focused on trying to minimise any delays in probate and the subsequent release and distribution of the estate’s assets.
The Anglo Saxon Conventions
Countries that have laws evolving from the Anglo Saxon tend to have considerable freedom on how a Will or testament is drawn up and who or what may benefit. Basically, a Will or testament can be drawn up on a scrap of paper, and providing it is authenticated by credible witnesses is almost incontestable. Similarly, a person can bequeath his assets to any persons or institutions he or she may desire. With the exception of surviving “direct-line” minors or dependents, it is possible to disinherit an individual and even an entire family. In a recent case in England, a widow left her entire estate to the proprietors of a Chinese Fast Food restaurant because they were kinder to her than her immediate family.
The Portuguese Conventions
In contrast, Portuguese and most European countries laws of succession tend to follow the Roman and Napoleonic codes which are very specific and rigid. Here, a system of forced inheritance - Linha Recta - applies, apportioning the major part of the estate in prescribed amounts to surviving family members appointed by law. A smaller portion (1/3) may be bequeathed to other institutions or non-family members. Basically, with very few exceptions, it is virtually impossible to disinherit any direct offspring of the deceased. This means that extra marital children also have a claim on an estate if the father is named on the birth certificate, even though he may never have lived nor had contact with them since their birth.
However, Portugal does recognise other National customs and allows foreigners, within the bounds of their legal systems, to compile their Wills using their own National practices. This is known as “personal law”. Nevertheless, a few restrictions may apply where Portuguese offspring are involved. For example; a foreigner who is a permanent resident and has assets in Portugal, could have a claim against his/her estate’s Portuguese assets from any Portuguese offspring (in or out of wedlock) where they are named as the parent on the contester’s birth certificate. This would be addressed during probate if such a claim were raised and could cause considerable delay in handing the dispersal of the estate over to the administrator.
EU Succession Regulation
With the exception of Ireland and Denmark, since 17 August 2015 the EU Succession Regulation (650/12) came into effect known as ‘Brussels IV’.
The objectives of Brussels IV are:
Remove obstacles to the free movement of persons who currently face difficulties in asserting their rights in the context of a succession having cross-border implications;
Enable EU citizens to organise succession matters in advance;
Guarantee the rights of heirs and legatees, of other persons close to the deceased and of creditors of the succession.
The principal provisions of Brussels IV are:
Jurisdiction: the courts of the member state in which the deceased had his/her habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole. That means that no succession issues are referred back to the courts of another country.
The law: the law applicable to the succession as a whole shall be the law of the state in which the deceased has his/her habitual residence at the time of death.
Altering the applicable law: anyone can change the law under a choice of law provision in Brussels IV, provided he/she chooses the law of the country whose nationality they possesses, either at the time of making that choice or at the time of death.
Change of jurisdiction: where the deceased has chosen the law of his/her nationality, the parties concerned can also agree that the courts of a member state whose law has been chosen shall have exclusive jurisdiction to rule on any succession matter. Further, courts with jurisdiction can decline that jurisdiction in certain circumstances. In such an event, jurisdiction will remain with the courts of the member state where the deceased had his/her habitual residence at the date of death.
Recognition, enforceability and enforcement of decisions: a decision given in a member state shall be recognized in the other member states without any special procedure being required. While there are grounds for non-recognition, there can be no review of the substance of a decision. There should be a European certificate of succession to give Pan-European status to the decisions of a competent court.
In our view anyone who:
lives in;
owns property in; or
-is moving to or from a Brussels IV state;
Should obtain advice on how Brussels IV and the laws of the relevant states may impact upon their succession planning.
Dual Nationals and Mixed Nationality Marriages
Dual Nationals, having both Portuguese and another Nationality, can be classified as Portuguese if they were to die in Portugal and that their normal place of residence was deemed to be within Portuguese jurisdiction at the time of the death. Portuguese conventions could then apply to the Will.
A “Portuguese Partner” in a mixed Nationality Marriage could also be classified in similar circumstances as above.
So, What are the Options?
Bear in mind, that assets will not be released for disposal by the probate authorities until they are satisfied that the Will is legally documented and notarized. No Portuguese institution will release or change title of property without such authority.
Generally, to minimize delays in probate and to simplify the release of the assets in Portugal, it isadvisable to draw up separate Wills - one for your Portuguese assets and another for those in your home country if you have any. If you so decide to draw up separate Wills, ensure that there are no conflicting comments between them. Nor should any Will state that “this is the last Will and testament” as this could invalidate the other(s).
It would be more expedient to have any necessary foreign documents translated and notarized in Portugal rather than in the home country. Note also that all original documents (including the Will itself) should be notarised in the issuing country by including the Hague Convention’s “Apostille” Seal (see Glossary).
Foreign Wills which include Portuguese assets
Portuguese assets can only be freed locally for disbursal on presentation of an officially notarized Portuguese translation of the original document. This should also include a notarized translation of the Home Country’s probate instructions if there are any. Similarly, if the testator were to die outside of Portugal, an official Portuguese translation and notarization of the death certificate must be presented. Without these, no transfer of title of Portuguese registered Real Estate, Vehicles, Boats, Bank Accounts, etc. can be effected. Nor could any expenses be drawn against the estate by the administrator. To ensure that these translations are acceptable to the local Portuguese Authorities, it is advisable to use local Portuguese Translation Services or Lawyers and Public Notaries. We recommend that this be done through a Portuguese registered lawyer who will also take care of the proper notarization and Apostille. Costs for the translations, notarisations and lawyers can be offset against the estate.
Unless you are fully conversant with the Portuguese language and local bureaucracy, we recommend that you employ a local lawyer to assist you with the process of local probate and title changes. This can be a time consuming process to be counted in months rather than days or weeks.
Portuguese Wills for Portuguese assets
The advantage of having a Portuguese Will for assets in Portugal is one of convenience and expediency. The probate process will be easier and except for a “Foreign Language Closed Will”, the whole process will be faster.
Wills in Portugal are usually drawn up by a Notary Public. The details are recorded in his register and a copy is subsequently registered with the appropriate Central Registry Office in Lisbon. The Notary can provide the testator with a copy of the will and this should include an Apostille seal if it is to be used outside Portugal.
Bear in mind that the Notary will not necessarily be conversant with the rights of foreigners and may try to guide you towards Portuguese convention. It is therefore advisable to engage a local lawyer who a) speaks your language and b) is knowledgeable of the conventions of your home country. Your local consulate can advise you on such service providers.
I.Public Will - is recorded in the Portuguese language by a Notary into his register.
Two witnesses must be present when the Will is signed by the testator. These cannot be of the following:
Persons not fully understanding the Portuguese language;
Persons under the legal age limit;
Deaf, mute, or blind person;
Employees, salary earners and apprentices of the Notary Office;
The spouse, relatives (Linha Direta) or members of the Notary that are beneficiaries in the instrument
The spouses jointly;
Anyone named as a beneficiary of the Will;
Illiterate person.
The testator will have to render information about the existence of the legitimate heirs, presenting a their complete identification i.e. (name, address, identity card/passport number, civil status, marriage regime of assets, etc).
The Will remains confidential until the testators’ death, the Notary will make two will records with the testators’ identification and reference to the register where it was recorded. One of the records stays at the Notary Office and the other is sent to and stays in the Central Registry Office in Lisbon.
II. Closed Will: is written, signed and closed by the testator or by any other person at their request if the testator is incapacitated.
A Closed will cannot be made by an illiterate person. In this case, it is recommendable to make a Public will.
The will should be approved by the Notary and must include the following:
That the presented writing contains the dispositions of last Will;
That it is written and signed by the testator, or written by somebody else, at the testator request, because he cannot or is unable to sign;
That the Will doesn't contain amended or truncated words, or deletions, blots or marginal notes, or in the case of having these, that they are properly accepted;
That with the exception of the last page which is signed, all pages are initialled by whomsoever signs the Will.
The testator has to go to the Notary with the Will, accompanied by two witnesses (as above). If everything is in order, the Notary makes a Solemn Approval of the Will, which is signed by the testator, the witnesses and the notary and is then enclosed with the Will.
The testator can retain the Will, commit it to the guardianship of a third person or deposit it in the Notary Office. In this case, the testator will have to inform someone that he has made a Will and that it was deposited with the designated Notary. After the death, that entrusted person, accompanied by two witnesses and taking a death certificate of the testator, goes to the Notary Office where the Will is deposited. Here the Notary will make a Solemn Opening of the Will, after which the Will is filed at the Notary Office. It can then be presented as an official document for probate.
Within three days of the notification of the death of the testator, the person who has the Will in their keeping is obliged to present it to a Notary in the parish (freguesia) where the document was recorded. If not, he incurs liability for any damages that may arise from the delay.
A closed Will can be recorded in any Notary Office in Portugal both mainland and the islands, or in any Portuguese consulate abroad.
Responsibility of the Notary’s Office:
Complete identification of the testator (name, address, identity card or equivalent document, issued by the competent authority of one of the countries of the European Union; or the driving licence, that has been issued by the competent authority of one of the countries of the European Union; or the Passport, taxpayer’s card, marital status and identification of the spouse, regime of assets of the marriage);
Complete identification of two witnesses (name, address, identity card, taxpayer’s card, marital status and identification of the spouse regime of assets of the marriage (if applicable);
Complete identification of the legitimate heirs (name, address, identity card, taxpayer’s card, marital status and identification of the spouse, regime of assets of the marriage (if applicable).
Complete identification of the real estate assets (Property Tax Register at the Finances Services, Property Register Office Certificate and the Habitation License, issued by the City Hall).
Current Costs for Notary Services:
It has an estimated cost of approximately € 400,00 due only to notary fees.
Current Costs for lawyer Services:
Lawyer costs for a relatively simple Will are about €600,00,This could be considerably more for a complex Will.
Conclusions
The foregoing is a simplified description of the options available to you. It is up to you to decide which would be the more convenient procedure for yourself and for the surviving heirs. Bear in mind the translation and notarising costs for a foreign Will could make this an expensive and cumbersome burden for the beneficiaries as these must be done up front before presentation to probate.
Glossary
Apostille - The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents is one of a series of conventions of the Hague Conference on Private International Law. It was signed by the original signatories on October 5, 1961. It specifies the modalities through which a document issued in one of the signatory countries can be certified for legal purposes in all the other signatory states. Such a certification is called an apostille. It is an international certification comparable to a notarization and is often added to documents that have been in some manner signed by a Notary, lawyer or other public official such as the clerk of a court of record in their official capacity.
Domicile – Loosely means Dwelling Place. Anglo Saxon countries usually define this as place of residence. However, within these countries, Domicile has special significance when adjudicating specific points of law and especially the Revenue Services in determining tax liabilities. Therefore, having a permanent residence in Portugal, does not necessarily exempt one from an inheritance liability in one’s mother country. In this context, the concept of domicile in these domains can also vary quite considerably between countries within the U.K. and similarly between states within the USA.
“Personal Law” – Laws of inheritance applicable in the testator’s mother country. E.g. England for English nationals. Germany for German nationals, etc.
Acknowledgements
The information in this bulletin was obtained from:
• afpop archives
• Dr. Eduardo Serra Jorge
• Dr. Alexander Rathenau
• Danielle Shrimpton LLB. Solicitor
Every care has been taken to verify the facts in this document. We therefore ask you to communicate any errors that you may find with the data herein or suggestions for the inclusion of additional information, to the afpop office. We would appreciate any constructive feedback on members' own experiences with this subject matter.
Other related bulletins in this series cover:
Death and Burial
Pre Death Planning
Dying with Dignity and
Winding up of an Estate
