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Testament avoids fights after his death; Thinking about what will happen to your assets after you die may not be a pleasant task, but it can save your family from fights and long legal disputes. The main way to avoid these problems is to detail the sharing of assets in a will. In addition to distributing the patrimony, the document serves to register other manifestations of will. There are three types of will. Understand how each one works, how much it costs and which one is the most suitable. What is a will? It is a record of how a person wants to distribute his assets after he dies.
Can I change my mind about what's in the will? Yes. The content of the testament can be modified or revoked by the testator himself at any time. What else is a will for? Although the main purpose of the testament is to distribute the patrimony after death, it serves to register other will s of the testator. The person can use the document to recognize a child and include it in the sharing of assets. According to the experts heard by the report, it is something that happens frequently. The testator can also indicate in the will who will be the guardian of the underage children.
Testamentary succession in Brazil
The heir can receive the inheritance through legitimate succession and testamentary succession, through the manifestation of the deceased's last will, and always without being fulfilled, it is a very personal act, and the testator can be revoked or annulled while alive and capable.
The will are a very personal act, as it is performed by the testator himself, disposing of his assets while still alive, assigning assets to a certain and determined person after his death, without interference by a third party. However, a third party, at the request of the tester and following his instructions, will be able to follow its elaboration, without interfering in its content and the testator's will.
The will are a cause of death act, since its effects are only produced after the death of the testator. It is a unilateral legal business; the testator declares his will to be fulfilled after his death. It depends on the manifestation of the testator's free and solitary will to dispose. It exemplifies how the appointment of a guardian to children should be, the management of their business, and their will in relation to their assets.
And it is a solemn act, prescribed by law, and some formalities, determined by law, must be observed to give guarantee and certainty about the will of the testator, and to verify the veracity of the clauses.
The Civil Code provides that the ability to test is for any natural person under 16 years of age, not declared incapable by the law and who is in full discretion at the time of the will.
For the deaf and dumb to be able to test, it is necessary that he be literate, knowing how to express his will.
Children under 16 and the mentally ill have the capacity to acquire, but not to dispose of.
Anyone is able to receive by will, whether an individual or a legal entity. According to article 1798 of the CC, “People born or already conceived at the time of opening the succession are entitled to succeed”.
Children not conceived at the time of the opening of the succession of the will are unable to receive by will, with the exception of those appointed by the testator, alive at the opening of the succession. The unborn child will have the right to acquire, by will, two years established by law for the conception of the expected heir.
Legal Entities of Public and Private Law, non-existent at the time of the testator's death, whose organization is determined by the testator in the form of a foundation.
Witnesses must be alien to the will in order not to influence the testator. The concubine cannot receive a will, unless she has actually been separated from her spouse more than five years ago, and the fault of the separation is not hers.
According to the Civil Code, the right to challenge the validity of the will is extinguished in 5 years, counting the term of the date of its registration. After the death of the testator, and the presentation of the will to the Judge.
In order to avoid fraud, the last will of the deceased, the lost or destroyed will cannot be redone.
Article 1863 CC prohibits conjunctive will, whether simultaneous, reciprocal or corrective. It forbids a will that asks more than one person, with the same dispositions and prohibits reciprocity, since each testator institutes the inheritance to the other as his heir because he named him heir in his will.
The will are the just manifestation of our will about what we want to be done after our death. The Brazilian legal system recognizes ordinary and special forms of will s. Ordinaries can be Public, Cerrado and Private. And the specials: Maritime, Aeronautical and Military. That are differentiated by the fulfillment of their formalities.
ORDINARY FORMS OF TESTAMENT
- Public Testament: Articles 1864 to 1867 of the Civil Code.
It is the most used in Brazil, and should be written in Portuguese National Language, configured in a public deed, which must be written or written in a book of notes, a private and non-delegable act of the notary, but which can be performed by its legal substitute, according to the tester's statements.
It is considered the safest of will s, as a copy is registered with the notary, preventing losses and destruction of the will. Anyone can have access after his death.
They require two witnesses, over the age of sixteen, literate and capable of performing civilian acts, and who understand the Portuguese language, which are essential for the validity of the act.
This form of testament cannot be witnessed by the deaf, blind, heir or legatee instituted in the will, their descendants, ascendants, brothers, spouses or companions. It must be someone totally unaware of the parties involved.
The will must be drawn up, read aloud by the notary to the testator and the two witnesses at the same time. The notary, testator and witnesses must sign the document. If the testator does not know how to sign, the officer declares the fact and designates one of the witnesses to sign by the testator.
Art. 1.866. “The individual who is entirely deaf, knowing how to read, will read his will, and if he does not know it, he will designate whoever reads it in his place, witnesses present.
Art. 1,867. “The blind person is only allowed a public will, which will be read out loud twice, once by the notary or his legal substitute, and once by one of the witnesses, appointed by the testator, with all mention being made in detail. in the will.”
The illiterate and the blind are only allowed to test in public.
- Cerrado Testament: Articles 1868 to 1875 of the Civil Code.
It is the will written by the testator, or by another person at his request, being subject to approval by the notary or his legal substitute in the presence of the testator and two witnesses to ensure the authenticity of the act.
It is only effective after the approval document is drawn up by a notary, in the presence of two suitable witnesses.
This testament can be written mechanically, provided that all pages are enumerated and authenticated with a signature.
The closed will has a confidential character, for those who want to keep their last will secret until its opening.
According to Art. 1.869 of the Civil Code, “the notary must begin the approval document immediately after the testator's last word, declaring, in his faith, that the testator handed him over to be approved in the presence of the witnesses; starting to close and sew the approved instrument.”
The closed will can be written in national or foreign language.
Illiterate and the blind cannot make such a will. He cannot dispose of his assets in a closed will, who does not know or cannot read.
The deaf mute saying that he writes his will and signs can write this form of will, handing it to the notary before two witnesses, writing on the outside of the paper that that is his will, whose approval he asks for.
They will be approved and, after being sealed, delivered to the testator. Only then, the notary will issue in his book a note of the place, day, month and year in which the will was approved and delivered.
After the testator's death, the will will be presented to the judge, who will open and register it, ordering it to be fulfilled, if he does not find an addiction that would render him null or suspected of falsehood.
- Private Testament: Articles 1876 to 1880 of the Civil Code.
The private will can be written by hand or mechanically, in a foreign language, if all the witnesses understand it.
If the will is written in its own hand, it must be read and signed by the person who wrote it in the presence of three witnesses who must sign it. If it is written mechanically, it must not contain erasures or blanks, and must be signed by the tester and read in the presence of three witnesses who will sign it. At the risk of being considered null, if you do not respect these requirements.
With the death of the testator, the will take to the judge of the inventory, with summons from the legitimate heirs and the witnesses must be summoned to confirm their authenticity, for the recognition of the will and their signatures.
The presence of a notary is not necessary for this testament, but it depends on the confirmation in court by the witnesses, who may no longer be present or will no longer remember what happened after the opening of the succession.
According to Art. 1.878 of the Civil Code. “If the witnesses are contesting the fact of the disposition, or, at least, about their reading before them, and if they recognize their own signatures, as well as that of the testator, the will last will be confirmed.
Single paragraph. If witnesses are missing, due to death or absence, and if at least one of them recognizes it, the will can be confirmed if, at the judge's discretion, there is sufficient proof of its veracity.”
If no witness is found, even if there is no doubt about the authenticity of the will, the judge must ratify the will.
Articles 1881 to 1885 of the Civil Code.
It consists of a record with few formalities of the act of last will, expenses of little value and wishes of little importance.
Issues related to his burial, small alms, bequeath furniture, clothes and jewelry of little value for his personal use, rehabilitate the unworthy.
It is a private document, written and signed by the testator, with the date as an essential requirement. It does not need witnesses and must be closed in a similar way to the closed will.
A codicil can revoke another codicil, a will can revoke a codicil. But the codicil cannot revoke the will. If there is a will after the codicil, it must mention it and confirm it so as not to revoke it.
SPECIAL WAYS OF TESTAMENT
They are testaments that take into account not having the means to use the ordinary form and the situation in which they find themselves, to express their last will at an imminent risk of death.
- Maritime and Aeronautical Testament: Articles 188
8 to 1892 of the Civil Code.
The maritime will is provided to anyone who is traveling, on board a national war or merchant ship. Before the commander, in the presence of two witnesses, through the public or closed will, and the commander must make the entry in the logbook. It can be done on the high seas, in rain or lakeside, if there is an incidence of risk of life and impossibility of disembarking in any port so that the will can be made in the ordinary way.
The aeronautical testament can be used for anyone on board a military or commercial aircraft, before a person designated by the commander, in the presence of two witnesses, through a public or closed testament, and the commander must record it in the logbook.
The commander will be under the custody of the maritime or aeronautical will, and will hand him over to the administrative authority of the first national port or airport.
The will expire if the testator does not die during the trip, or in the ninety days following his disembarkation on land, where he can make another will, in an ordinary way.
Article 1,892. "The maritime will will not be valid, even if done in the course of a voyage, if, at the time it was made, the ship was in port where the tester could disembark and test in the ordinary way."
- Military Testament: Articles 1893 to 1896 of the Civil Code.
This will can be made publicly, closely or orally. It is restricted to the military or civilians who are in the service of the Armed Forces. The law requires that the testator be on campaign, outside the country or in a besieged square, or in a place that has interrupted communication, with no notary or legal representative.
The will can be made before two witnesses, and if the testator does not know how to sign it will have to be done by three witnesses, where one will sign for him.
It can be written by the commander, or by a health officer if he is unable to undergo hospital treatment.
According to Art. 1.895. "The military testament expires, provided that, after it, the testator is, ninety days in a row, in a place where he can test in ordinary form, unless that testament presents the solemnities prescribed in the sole paragraph of the preceding article."
There is the nuncupative will as a kind of military will, being engaged in combat or wounded, in imminent danger, can test nuncupative, in the verbal form, entrusting his last will to two witnesses.
If the testator dies in combat and the witness survives, he will seek out his patent officer and inform him of the will. The officer reduces to term, with the signature of him and the witnesses.
It will if the tester does not die.
Source – DireitoNet
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