Creating a will is a critical step in ensuring that your wishes for the distribution of your assets are respected after your death. It can also help to prevent family disputes over inheritance. However, for a will to be legally valid in Portugal, there are specific requirements that must be met. Here’s what you need to know:
Why Make a Will?
In Portugal, if you pass away without a will, your estate will be distributed according to the law of succession. The order of inheritance prioritizes the following groups:
- Spouse and Descendants (e.g., children and grandchildren)
- Spouse and Ascendants (e.g., parents and grandparents)
- Siblings and Their Descendants
- Other Relatives Up to the Fourth Degree (e.g., cousins, great-uncles, great-aunts)
- The State
If you wish to leave assets to individuals outside these groups or to non-relatives, a will is necessary. However, Portuguese law reserves a “legitimate portion” of the estate for the legal heirs, which cannot be freely allocated in a will.
Understanding the Legitimate Portion
The legitimate portion, also known as the “quota indisponível,” ensures that specific heirs are protected. This portion varies depending on your family situation:
- Spouse only: 50% of the estate is reserved.
- Spouse and children: Two-thirds of the estate is reserved.
- Children only: Half to two-thirds, depending on the number of children.
- Spouse and ascendants: Two-thirds of the estate is reserved.
The remaining part of the estate, known as the “available portion,” can be freely allocated in the will.
Key Considerations When Drafting a Will
Who Can Make a Will?
To create a will in Portugal, you must:
- Be over 18 years old.
- Not be legally incapacitated due to mental or psychological conditions.
Types of Wills
There are two main types of wills in Portugal:
- Public Will: Drafted and recorded at a notary’s office.
- Closed Will: Written by the testator or an authorized person (e.g., a lawyer), then approved and sealed by a notary. The sealed will can be kept by the testator, a trusted individual, or deposited at a notary’s office.
Revoking a Will
A will is not permanent and can be revoked in three ways:
- Express Revocation: By creating a new will or through a public declaration.
- Implied Revocation: When a new will contains provisions that contradict the previous one.
- Actual Revocation: By physically destroying the document (only for closed wills) or if the assets mentioned in the will no longer exist.
Steps to Make a Will
- Choose the Type of Will: Decide whether a public or closed will suits your needs.
- Consult a Professional: While not mandatory, consulting a lawyer or tax advisor can help ensure that the document complies with legal requirements and avoids potential disputes.
- Visit a Notary: Schedule an appointment at a notary’s office. If you live abroad, you can draft a will at a Portuguese consulate in your country of residence.
- Bring Required Documents: You’ll need identification (such as a citizen card or passport) and two witnesses who meet the legal requirements.
Who Can’t Inherit?
Certain individuals are prohibited from inheriting under Portuguese law, including:
- People convicted of homicide or attempted homicide of the deceased or their close relatives.
- Healthcare providers or clergy who cared for the deceased during a terminal illness (unless expressly mentioned in the will).
- Beneficiaries who committed adultery with the testator’s spouse.
Tax Implications for Heirs
Heirs in Portugal may be subject to a 10% stamp duty on inherited assets. However, there are exemptions for:
- Spouses
- Legal partners (união de facto)
- Descendants and ascendants
Even exempt individuals must declare inherited assets to the tax authorities. The tax applies to:
- Real estate
- Vehicles
- Valuable items (e.g., jewelry, art, shares)
Final Thoughts
Making a will is a proactive step to ensure your wishes are respected and to prevent potential conflicts among heirs. While the process is straightforward, the assistance of a legal or tax professional can provide peace of mind and ensure compliance with Portuguese law.
If you have questions or need guidance on estate planning in Portugal, feel free to contact our office for personalized advice.
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