I read once that there are only two things certain in life; death and taxes. On my last article I spoke about taxes, this time the issue is death, namely what happens to your estate once you are gone.
Paragraph 62 of the Portuguese Civil Code says; “The succession by death is regulated by the personal law of the deceased at the time of the death, which also governs the powers of the inheritance administrator and the executor of the Will”.
Paragraph 31 number 1 says; “The personal law is the law of the nationality of the individual”.
This means that if a British person dies intestate in Portugal, Portuguese law says that it is the British law that says who the heirs are, and what is their part of the estate of the deceased.
It seems simple, but it is not. To apply a foreign law the Portuguese authorities have to know what the foreign law says, and when there is disagreement between the heirs, the matter must be taken to court to prove that each is entitled to their claim. This invariably means a process that until now took many years to complete.
With the reforms in the judicial system, this process now might not take as long as before, but there is still the possibility of the Portuguese courts having difficulty applying foreign laws, as Portuguese judges have no background in Common Law as indeed British judges, or judges in other countries, may have no specific background in Portuguese law.
The Portuguese court therefore relies on the information presented by the parties, and in addition they can also ask for the cooperation of authorities in the country of nationality, with all the inherent delays in official correspondence between authorities.
Just recently our office sustained that English law was applicable to in court case in Portugal, the judge considered that Scottish law could also be applicable and ordered that we informed the court of what the law said.
To provide information about English law was a fairly simple matter, as there are English solicitors working in Portugal, duly registered at the British Consulate, which certifies the qualifications and the validity of their opinions. Information on Scottish law has proved to be a lot harder to obtain. The British Consulate referred us to the Scottish Law Society, who in turn referred us to a law firm, who issued an opinion, which than had to be certified by an official authority to be accepted in court.
Obviously this entailed time and costs.
On the other hand if you have a Portuguese Will, all your heirs have to do is to go to a Public Notary in order to establish their position as heirs, based on the Will and then register the assets in their names.
You may get the same result if you have Will from your country of origin, meaning that if you have a valid English Will, the Portuguese authorities will recognize it, but there are further obstacles such the certified translation of English legal expressions correctly into Portugal, as well as previous Probate, or certification by an English solicitor that Probate is not needed.
Like most things in Portugal, to make a Will involves more bureaucracy than in some other countries. It must be drafted by a Notary, who must read it to the testator and/or the testatrix, who then must confirm to the Notary that they agree with the text, and sign it before the Notary, all this in front of two witnesses, who also have to sign, plus a translator if you do not understand the Portuguese language.
The good thing about all the bureaucracy is that it is very difficult to successfully challenge a Portuguese Will, so once done you rest assured that your estate at the time of your death will pass to the people who you determine.
In Portugal as in many other legal systems, shares in the estate go to the heirs as is determined by statutory law, but Portuguese law is only applicable to Portuguese nationals.
The Portuguese Civil Code states that the Will of a foreigner national is governed by the national law of the deceased, meaning if you do a Will where you leave everything to your dog, and it is valid under your national law, the Portuguese authorities have no problem with it, ALTHOUGH EXECUTING SUCH WILL IN PORTUGAL WOULD BE DIFFICULT, UNLESS AN EXECUTOR WAS APPOINTED.
I do strongly recommend to all foreigners living in Portugal that they make a Portuguese Will, which will allow to your heirs to access the assets they inherit, not only real estate, but others such as savings accounts which your surviving spouse will not be able to access, unless previously recognized by the Portuguese authorities as the lawful heir.
Nelson Ramos
Lawyer – Portugal
Master in Int’l Law - USA
Email: nelson@nramoslawyers.com
W: http://www.nramoslawyers.com/
