As a general rule, no.
Having a will in Brazil does not eliminate the need to open probate proceedings after a person’s death.
In other words, the answer to the question “does a will avoid probate?” is usually no when there are assets to distribute in Brazil.
Wills and probate are closely related under Brazilian succession law. However, they serve different purposes and should not be confused.
Probate proceedings identify and distribute the assets left by the deceased.
As a general rule, when the deceased leaves assets to be distributed, the heirs will need probate proceedings. Some exceptions may apply, such as judicial authorization, or alvará judicial, and other situations provided by law.
A will has a different purpose.
It expresses the testator’s wishes about the distribution of assets after death.
A will can be an important estate planning tool. Still, it does not replace or eliminate probate proceedings.
What Is a Will in Brazil?
Although people often discuss wills in the context of estate and succession planning, many still have questions about them.
Most people do not deal with wills in everyday life.
A will is an instrument under Brazilian succession law. It records the testator’s final wishes about the distribution of assets after death.
Asset-related provisions are the most common. However, a will may also include non-financial provisions, such as the recognition of a child.
Brazilian law classifies wills into ordinary and special forms.
Ordinary wills include public wills, private wills, and closed wills.
Special wills include maritime, aeronautical, and military wills.
This article focuses only on ordinary wills. People generally use them in more common situations.
Special wills apply to exceptional circumstances provided by law.
Public Will
A public will, or testamento público, is executed before a Brazilian Notary Public’s Office, known as a Tabelionato de Notas.
A notary drafts the will according to the formalities established by law.
Many people consider this one of the safest forms of will because the notary’s office formally records it.
Private Will
A private will, or testamento particular, may be written by the testator or by another person.
It is generally simpler than a public will.
Even so, it must follow specific legal formalities.
Closed Will
A closed will, or testamento cerrado, may be written by the testator or by another person.
After that, a notary must approve it.
One of its main characteristics is confidentiality. As a general rule, its contents are revealed only after the testator’s death.
Purpose of a Will
Each type of will has its own characteristics.
Even so, they all serve the same general purpose.
A will records the testator’s final wishes about financial or non-financial matters. It produces effects after the testator’s death.
Brazilian law also establishes limits that must be observed.
What Are Probate Proceedings in Brazil?
Probate, or inventário, is one of the main procedures under Brazilian succession law.
Probate proceedings legally transfer the assets left by a deceased person to their heirs.
During this process, the estate must identify the heirs. It must also identify the assets, rights, and obligations left by the deceased.
After that, the estate can be distributed.
During probate, an estate administrator, or inventariante, administers the estate.
The estate, or espólio, includes the assets, rights, and obligations left by the deceased.
The administrator carries out the necessary acts of administration during probate.
Brazilian law provides two main forms of probate: judicial probate and extrajudicial probate.
The facts of each case determine which path is more appropriate.
Judicial Probate
Judicial probate takes place before a Brazilian court.
Families generally use this path when there is a dispute among the heirs.
It may also apply when the case does not meet the requirements for extrajudicial probate.
Extrajudicial Probate
Extrajudicial probate takes place through a notary’s office.
It may take less time than judicial probate.
Among other legal requirements, the interested parties generally need to agree on the probate terms.
Why Does a Will Not Avoid Probate in Brazil?
Probate proceedings remain necessary because they serve a different purpose from a will.
The existence of a will does not, by itself, eliminate probate. This is especially true when the deceased leaves assets to distribute.
A will expresses the testator’s wishes about the transfer of one or more assets to specific beneficiaries.
However, a provision in a will does not automatically transfer the asset to the beneficiary after death.
Before a beneficiary named in a will can receive an asset, the estate must follow the appropriate succession procedure.
Through probate proceedings, the estate identifies the assets and heirs.
Probate also allows the will to be reviewed under Brazilian law.
That review may confirm whether the will respects the inheritance rights of other heirs.
Simply put, the will indicates the deceased’s wishes.
Probate proceedings formalize the distribution and legal transfer of the assets.
Can a Will Make Probate Easier?
Yes.
Although a will does not avoid probate in Brazil, it remains an important instrument in succession and estate planning.
When the testator prepares a will according to legal requirements, the will can help organize succession.
It records the deceased’s wishes in advance.
That can reduce uncertainty when the estate is distributed.
It may also reduce disputes among heirs.
Still, a will does not automatically make probate simpler or faster.
The heirs may still challenge the will. They may also ask whether the document complies with Brazilian law.
This review may involve the validity of the will.
It may also involve the legal limits that apply to the testator’s dispositions.
For that reason, compliance with Brazilian law is crucial when preparing a will.
A qualified professional can help ensure that the will follows the required formalities.
Proper drafting can help the will support the succession process.
Poor drafting can have the opposite effect.
A will that does not comply with legal requirements may create more disputes than solutions.
This can be especially difficult at a moment that may already be complex for the family.
Is Extrajudicial Probate Possible When There Is a Will?
This question often creates confusion.
The Brazilian Code of Civil Procedure provides that, when there is a will, probate should proceed through the judicial system.
However, Brazilian case law has recognized the possibility of extrajudicial probate when certain requirements are met.
One important factor is agreement among the heirs.
When all heirs agree, extrajudicial probate may be an option even if a will exists.
The case must also satisfy the other legal requirements for this procedure.
If the heirs do not agree, the case will generally need judicial probate.
Extrajudicial probate can make the process faster and less bureaucratic.
It can also avoid a full judicial proceeding for the distribution of the estate.
Depending on the circumstances, a court probate case may last for years.
For that reason, the existence of a will should not automatically block extrajudicial probate.
Each case must be evaluated individually.
That review will determine the most appropriate procedure.
What Are the Limits of a Will in Brazil?
A will expresses the testator’s wishes.
But how far can those wishes go?
Can someone leave all assets to one person?
Can a person leave assets directly to a pet, as we sometimes see in movies?
Brazilian law allows the testator to express personal wishes. However, it also establishes limits.
One of the most important limits is the legítima.
The legítima is the legally protected share of the estate.
Forced Heirs and the Legítima
Brazilian succession law protects certain individuals known as forced heirs, or herdeiros necessários.
Forced heirs include descendants, ascendants, and the spouse.
When forced heirs exist, half of the deceased’s estate must be reserved for them.
This 50% share is known as the legítima.
The remaining 50% is generally called the disposable portion, or parte disponível.
The Disposable Portion
As long as the legítima is respected, the testator may decide how to distribute the disposable portion.
For example, the testator may benefit a friend.
The testator may also benefit a nephew, niece, or even one of the forced heirs.
If a testator has forced heirs, they cannot simply leave the entire estate to a friend.
The succession rights of forced heirs must be respected.
Brazilian law protects those rights.
If the testator has no forced heirs, the testator generally has greater freedom.
In that case, the testator may dispose of the entire estate in favor of a chosen person or institution.
Pets and Brazilian Wills
Brazilian law does not allow an animal to inherit property directly as an heir under a will.
This differs from what may happen in some other countries.
However, a will may include provisions about the care, protection, or custody of the testator’s pet.
These provisions must respect the applicable legal limits.
When forced heirs exist, they must also respect the legítima.
When Should You Consider Making a Will in Brazil?
A will can be important when someone wants to organize succession in advance.
It can also help when the person’s assets or family circumstances require more planning.
A will may be useful when there are children from different relationships.
It may also help when there are family businesses.
Another common situation involves a specific asset that the testator wants to leave to a particular person after death.
People sometimes think wills are necessary only for those with substantial assets.
That is not always true.
A will can also help in many other circumstances.
The decision depends on the person’s family structure, assets, and succession wishes.
International Situations
Estate planning may be especially relevant in international estate planning situations.
This includes foreign nationals who own assets in Brazil.
It also includes Brazilians who live abroad.
A will may also help Brazilians who want to leave a specific asset to a family member or another person living outside Brazil.
Broader Succession Planning
The decision to make a will should consider each person’s individual circumstances.
A will does more than define who receives a specific asset.
It can form part of a broader estate and succession plan.
That plan should reflect the person’s family structure and financial circumstances.
How Oliveira Lawyers Can Help
A will can be an important estate planning tool in Brazil.
When prepared according to Brazilian law, it can contribute to a more organized succession.
It may also help reduce uncertainty and disputes among heirs.
Succession and estate planning can involve complex legal requirements.
Cases involving assets or family members in different countries may require even more attention.
Oliveira Lawyers assists Brazilian and foreign clients with estate and succession planning, wills, and probate proceedings in Brazil.
This includes cases with international elements.
Every succession matter has its own circumstances.
Before preparing a will or beginning probate proceedings in Brazil, the family should evaluate the case carefully.
That review helps identify the measures that best protect the estate.
It also helps ensure that the succession follows Brazilian law.
If you need assistance with a will, estate planning, or probate proceedings in Brazil, contact Oliveira Lawyers for a case review.