NOTES CONCERNING SUCCESSION IN THE PORTUGUESE LAW
Succession is one of the most problematic areas for Portuguese citizens who live abroad as well as for Portuguese descendents.
Most of the time they left Portugal while their parents where still alive and they did not come back to the country or, if they did, they never regularized the situation of the inheritances. Mostly they asked their brothers or friends to take care of the property until the division of property occurred. Normally, it all goes well while the brothers lived and took care of the property. But frequently, it is not so when the brothers are replaced by the nephews who have never seen those uncles from Brazil or from America.
It is usually the members of this second generation who attempt to appropriate everything, usually by invoking usucapion (adverse possession )
and registering the property in their own name.
Problems arise mostly when the property was worthless but is now worth a fortune because it is located in areas where a great development occurred.
The situation gets worse when there have also been successions in the generation that emigrated and nothing was done to represent the heirs in Portugal.
Besides this phenomenon of human and familial relationships, the shortening of the time limit of the usucapion, urges the citizens that live abroad and who have inheritance rights in Portugal, to bring their situation into line with the law.
Synthetically, it is important to say the following:
1. Whenever the death of someone who has property rights in Portugal occurs, it is necessary to notify the tax authority as well as to present a list of assets. Besides the tax significance of this deed , it is also an affirmation of one’s rights that makes it harder for others to invoke usucapion.
2. The time limit for the presentation of the list of assets is of thirty days but it can be done anytime if one pays a small fee.
3. It is also necessary to register the death in Portugal for, without this procedure, there will be no succession process.
4. When there is an undivided estate, sometimes from three or four undivided inheritances, it is important for all those who do not yet have the possession of the property, to make the partition of property. This can be an amicable division between the heirs. Another option is to do a legal inventory.
5. When there is an amicable division between the heirs, a public document is necessary.
One of the problems arising from the division of the property is to know which heirs are entitled to the property and also to define the succession system when citizens of different nationalities are involved. In what concerns the heirs, there is a problem that has to do with knowing if they are entitled to the property in light of the Portuguese law or only in light of the foreign law. This raises many problems related to the person’s situation in terms of civil status and Registry of births, marriages and deaths.
It is also important to know that in many situations – all the inheritances that occurred before 1967 and that are still undivided – it is necessary to apply three different succession systems depending on the date of death of the author of the succession. Thus: Code of Civil Procedure of 1867, Code of Civil Procedure of 1966 in its original version and also the Code of Civil Procedure in its current version.
As part of our international cooperation with the colleagues of PORTUGAL EXPRESSO, we analyze succession issues that involve more than one country and we regularize the situation as well as execute the division of property (either amicable or contentious division).
