International Inheritance Laws

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In Brazil, the legal age to write a will is 18 years old. The testator with testamentary capacity shall grant power to an attorney over the will; however, it is not mandatory. If the testator should die, the attorney no longer has power of the will and a probate must be initiated. During that time an executor is appointed. If the testator lacks capacity, the distribution of the assets are appointed by the court during a procedure known as a judicial interdiction, in which a curator is selected to manage the assets.

A testator has limited freedom to the distribution of their assets. It’s mandatory that half of the testator’s assets be distributed to the necessary heirs. The other half may be distributed to whomever he/she chooses. If however the decedent dies intestate, under the laws of Brazil, all of the assets immediately are transferred to the necessary heirs. The necessary or “legitimate heirs” include the descendants, the ascendants, and in certain circumstances the surviving spouse. The assets distributed to the necessary heirs are not of equal amounts but rather in percentages. The percentage of the decedent’s assets distributed are determined by the regime established in the marriage if there is a surviving spouse, the amount of children, whether the children are from both surviving spouse and decedent or just from the decedent, and whether the decedent left ascendants.

Under the inheritance law, if the surviving spouse is the ascendant of the descendants shared with the decedent, then the surviving spouse’s share is in conjunction with the descendants and is entitled to the minimum 1/4th of the inheritance. If, however, the surviving spouse is not an ascendant of the descendants, the entitlement to at least 1/4th of the inheritance is not required; therefore, the spouse shall receive the same share as descendants. During the marital property rules, the amount the surviving spouse receives is determined by whether the marriage between the surviving spouse and decedent was under full community property rules, if they were married under separate property regime, or if they were married under partial community property regime with no private property left from deceased. If there is no descendant but a surviving spouse and ascendants, both receive the assets. Regarding the ascendants (with respect to the marital property rules), the closest to the decedent, also known as, “first degree ascendants” (mother and father) exclude the most remote (grandparents). If there is equality in the degree of ascendants, the paternal line inherits half and the other half is put aside for the maternal line. If the surviving ascendants are first degree ascendants then the surviving spouse receives one third of the inheritance. If there is only one surviving ascendant or if the degree is greater than the first degree than the surviving spouse will receive half of the inheritance. If there is only a surviving spouse and no descendants or ascendants, the surviving spouse inherits everything. If there are neither descendants, ascendants, nor a surviving spouse, the estate is distributed to the collateral line which includes the decedent’s sibling, uncles, aunts, cousins, nephews, and nieces. If there is also no collateral line, the estate is given to the state. This procedure is known as “estate in abeyance”.

These inheritance laws differ from the New York Law in that when the decedent dies intestate, the surviving spouse automatically receives $50, 000 and ½ of the estate first before the descendant’s receive the remaining estate. Also the ascendants only receive the assets if there is no surviving spouse, issue, and no siblings of the decedent.