Certainly, thinking about death itself is not something you do regularly, but as prevention is better than cure, it is important to deal with some bureaucracies related to inheritance while you're still alive. In order to facilitate the process, ComparaJá.pt explains in this article everything about how to make a will.
What is a will?
According to article 2179 of the Civil Code, which legislates the notion of will:
"1. A will is said to be the unilateral and revocable act by which a person disposes, after death, of all his assets or part of them.
2. The non-equity provisions that the law allows to be inserted in the will are valid if they are part of an act covered in a will, even if there are no equity provisions in it. ”
The will is a personal act, that is, it cannot be done by a representative or be dependent on the agency of others. It is also a singular act, that is, two or more people cannot test in the same act.
Everyone can make a will, with the exception of non-emancipated minors and people with mental disabilities.
Know what is legitimate and why you should respect it
When leaving your assets in will, you guarantee that they will be distributed according to your will, however there are rules that you must follow, as the division cannot be done as you wish. Chapter I of Title III of the Civil Code contains legislation regarding legitimacy, a basic principle that safeguards legitimate heirs.
According to article 2156 of that chapter, “Legitimate means the portion of property that the testator cannot have, as it is legally assigned to legitimate heirs.”
Legitimate heirs who, according to article 2157, are the spouse, descendants and ascendants, are always entitled to part of the inheritance, even if the deceased does not want it to be so.
If there are no descendant or ascendant heirs, the spouse is entitled to half of the inheritance (article 2158), the other half being available to be distributed according to the will of the testator.
If there are spouses and descendants, the legitimate right to which they are entitled is two thirds (Article 1 (2159)), with the testator having only one third available to distribute freely.
However, if there is no spouse, but there are descendants, they are entitled to half or two thirds of the inheritance, depending on whether they are just one child or two or more, respectively (Article 2 (2159)).
What types of wills are there?
According to article 2204 of the Civil Code, there are two types of will: the public and the cerrado.
As mentioned in article 2205 of the Civil Code, the public will consists of a document written by the notary in his book of notes, whereas the closed will “Is written and signed by the testator or by another person at his request, or written by another person at the request of the testator and signed by him”, as mentioned in paragraph 1 of article 2206 of the Civil Code.
According to paragraph 2 of the aforementioned article, "The testator can only fail to sign the closed will when he does not know or cannot do so, and the reason for not signing it is recorded in the approval instrument." It is also mandatory that the closed will be approved by the notary.
It is inhibited, by Law, to make a closed will who does not know or cannot read (article 2208 of the Civil Code). Whoever is facing these conditions will have to draw up a public will in which the participation of a notary is required.
How and where to do it?
In practical terms, making a will is quite simple, just go to a Private Notary or a Public Notary, with the exception of the following:
- Aveiro Notary of Specialized Competence;
- Matosinhos Notary of Specialized Competence;
- Porto Notary Office of Specialized Competence;
- Lisbon Notary Office for the Protest of Letters;
- Notary Office for the Protest of Letters of Porto.
The will can be made at any time, by appointment. It is necessary to be accompanied by two witnesses, and, as stated in paragraph 1 of article 48 of the Notary Code, they must be identified in any of the following ways:
“A) By the notary's personal knowledge;
b) By showing the identity card, equivalent document or driving license, if they have been issued by the competent authority of one of the countries of the European Union;
c) By showing the passport;
d) By the declaration of two creditors whose identity the notary has verified in one of the ways provided for in the previous paragraphs, expressly stipulating which means of identification is used. ”
If you live abroad you can go to the Consulate of Portugal of the country where you are.
According to the information on the Citizen's Portal, the making of a public will or the approval of a closed will at a Public Notary's Office has a cost of 159 euros.
Payment can be made by ATM, in cash, by certified check or bank check to the order of the Institute of Registries and Notaries (IRN) or by postal order.
Is it mandatory to make a will?
It is not mandatory by law to make a will, however this document is a way of guaranteeing that the part of the patrimony that you have to distribute freely is given to those who really want to, in case you want to make the distribution to people other than your legitimate heirs.
If you do not make a will, the sharing of assets is done in the following order:
- Spouse and descendants (children, grandchildren);
- Spouse and ascendants (parents and grandparents);
- Brothers and their descendants;
- Other relatives more distant to the fourth degree (right cousins, great-uncles and great-nephews);
In addition to its heritage, any debts that you have when you die are part of the inheritance and have to be paid off by the heirs who accept. It is also important to mention that one cannot accept only part of the inheritance and repudiate the other, that is, if there is patrimony, but there are also debts, both have to be accepted or repudiated, according to the will of the heir.