By Dr. Willian Nunes – WNAdvogados | www.wnadvogados.adv.br
When it comes to preparing for the future, few documents are more important than a legally valid will. For foreigners with assets or family members in Brazil, working with a lawyer specialized in wills and estate law in Brazil is critical. Brazilian succession laws are unique and often misunderstood—even by locals. Without proper legal support, your wishes might not be respected, and your family may face unnecessary legal complications.
In this article, we’ll answer the most frequently asked questions about wills in Brazil, clarify how the legal system works, and explain why hiring a Brazilian lawyer is essential to protect your legacy.
What Is a Will Under Brazilian Law?
A will (testamento) in Brazil is a legal document in which a person determines how their assets will be distributed after their death. It is governed primarily by the Brazilian Civil Code (Código Civil Brasileiro), specifically from articles 1.857 to 1.990.
Unlike many countries where testators can freely choose their beneficiaries, Brazilian law imposes forced heirship rules (herança legítima). This means that 50% of a person’s estate must be reserved for their legal heirs, such as children, spouse, or parents, regardless of the will.
The remaining 50% can be freely allocated through a will to anyone the testator wishes.
Can Foreigners Make a Valid Will in Brazil?
Yes. Foreigners who own property in Brazil—whether real estate, bank accounts, businesses, or investments—can and should create a Brazilian will to ensure that their wishes are legally recognized within the country.
Key points:
- The will must respect Brazilian legal formalities.
- It should be written in Portuguese (official language).
- It must be notarized or approved by a Brazilian judge.
- It should comply with Brazil’s inheritance laws.
Many foreigners wrongly assume that a will made abroad will automatically apply in Brazil. While it may be recognized with a long legal process and court approval, a locally drafted Brazilian will is much more efficient and cost-effective.
What Types of Wills Are Accepted in Brazil?
Brazil recognizes several types of wills:
1. Public Will (Testamento Público)
- Drafted by a notary (tabelião).
- Read aloud and signed in the presence of two witnesses.
- Registered and archived in a public notary office.
- The most secure and widely recommended type.
2. Closed Will (Testamento Cerrado)
- Written by the testator or their lawyer.
- Signed and sealed before a notary and two witnesses.
- Its contents remain confidential until death.
3. Private Will (Testamento Particular)
- Handwritten or typed by the testator.
- Requires at least three witnesses who can confirm its authenticity after death.
- Higher risk of contestation and legal issues.
For foreigners, the public will is the safest and most enforceable option under Brazilian law.
Why Is It Important to Hire a Lawyer for Wills in Brazil?
1. Expertise in Succession Laws
Brazilian succession law is complex and differs from many other countries. A lawyer ensures that your will aligns with both your wishes and the legal framework.
2. Avoiding Legal Conflicts
With proper legal advice, you can avoid potential disputes among heirs, claims of illegitimacy, or even the annulment of the will.
3. International Considerations
If you have a foreign will or assets in multiple countries, your lawyer can coordinate estate planning internationally, minimizing tax implications and procedural delays.
4. Protection of Foreign Investors
Many foreign investors who own real estate or businesses in Brazil are unaware that inheritance procedures (inventário) must follow Brazilian law. Without a local will, assets may be frozen for months or even years.
What Happens If a Foreigner Dies Without a Will in Brazil?
If a foreign national dies intestate (without a valid will), Brazilian succession law will apply to any assets located within Brazil. The estate will go through judicial succession, with legal heirs receiving the forced share (as determined by law).
This process involves:
- Appointment of an estate administrator.
- Court-supervised inventory (inventário judicial).
- Payment of inheritance taxes (ITCMD).
- Distribution according to the Civil Code.
Disadvantages of dying intestate in Brazil:
- No control over how assets are divided.
- Longer court processes.
- Potential disputes among heirs.
- Inability to name guardians for minor children.
Frequently Asked Questions About Wills in Brazil
Can I leave all my assets to my spouse or partner?
No. Brazilian law mandates that 50% of your estate must go to your legal heirs, including children, parents, or spouse, depending on the family structure. The remaining 50% can be left to your spouse or partner through a will.
Is a will made abroad valid in Brazil?
Possibly, but it must be legalized, translated into Portuguese by a sworn translator, and approved by a Brazilian court. This process is slow and costly. A Brazilian will is more efficient.
Can same-sex partners or unmarried partners inherit?
Yes. Stable unions (união estável), including same-sex partnerships, are recognized under Brazilian law. However, proving the union may require additional documentation. A will helps ensure protection.
Can I disinherit my children in Brazil?
Only under exceptional circumstances, such as severe misconduct (e.g., threats, violence, or dishonor), and you must explicitly justify this in the will. Even then, a court may reverse it.
Are there taxes on inheritance in Brazil?
Yes. The ITCMD (Imposto sobre Transmissão Causa Mortis e Doação) is a state-level inheritance tax. Rates vary by state, generally between 4% and 8%. Your lawyer will help you calculate and reduce exposure if possible.
Do I need to register the will?
Not all wills require registration, but a public will is automatically registered, which simplifies future legal procedures. Your lawyer can advise based on your case.
How to Draft a Will in Brazil as a Foreigner: Step-by-Step
- Hire a qualified estate lawyer in Brazil, preferably fluent in English.
- Review your Brazilian assets: real estate, bank accounts, shares, vehicles, etc.
- Determine your legal heirs and who you wish to benefit.
- Choose the type of will that best suits your case.
- Draft the will in Portuguese and ensure it meets all legal requirements.
- Sign the will in front of witnesses and/or notary, depending on the type.
- Keep a secure copy and inform your heirs or lawyer of its existence.
