NEWSLETTERS

Last Will and Testement in Portugal

The Portuguese citizen has their inheritance situation already established by the Civil Code wherein it is clearly defined the classes of heirs who will receive the inheritance under the terms of article 2133.

However, this is not the case with the foreign citizen, as under the terms of Article 62 of the Portuguese Civil Code, the applicable law in the event of the death of a foreign citizen is their personal national law at the time of death.

ARTICLE 62 (Competent Law) The succession by death is ruled by the personal law of the author of the succession at the time of their death, which also defines the powers of the administrator of the inheritance and the executor of the Will.

In order to define the personal law it will be applicable the article 31, number 1 of the Portuguese Civil Code whereby it is established that the personal law is the one of the person’s nationality to the exception of the stateless individuals (vide article 32 of the Civil Code).

ARTICLE 31º (Definition of the personal law) 1. The personal law is the one of the individual’s nationality. 2. (…)

As Portuguese legal procedure does not acknowledge what is stipulated by the foreign juridical law concerning inheritance succession, it is always the best option to make a Will in Portugal to cover the formalities that ensue on death.

However if a Will is the answer to the transmission problems of a property by death, it may be required, in order to receive the balance of a bank account or other financial applications to have a Deed of Probate (escritura de habilitação de herdeiros).

The Deed of Probate is performed through a Notarial deed in which the head of the household (cabeça de casal) declares the identity of the heirs who will receive the inheritance. Though the Will may be the base for this deed, it will be necessary to prove to the Notary what the Succession Law in the country of origin is.

The Will, as opposed to British Law for example, is made through a Public Deed, and is witnessed by two individuals with no connection either between themselves or with the party making the Will (the Testator). The original, as with all Notarial Deeds, will be filed with the Notary and it is with a certified copy of this Will that the whole process begins following the death of the Testator.

Despite the above, the Will made in the country of origin (for example United Kingdom, Germany) will be valid in Portugal as long as some formalities are satisfied. The problems in applying such a Will is not in the legality of it but rather on a practical level where some questions may arise that may be difficult to resolve, or even impossible to apply under Portuguese judicial procedure in respect of some regular legal structures, as for example in Anglo-Saxon laws which have no parallel in Portugal.