A will is one of the most traditional and secure ways to plan the division of assets among heirs, ensuring that the wishes of the estate holder are respected after their death. Often underestimated, a will offers various legal advantages and can prevent conflicts among heirs, providing clarity and security in the distribution of assets.
Why Make a Will?
The primary function of a will is to ensure that a person’s assets are divided according to their wishes. Without a will, the division of assets is carried out according to the rules of legitimate succession, as provided by Brazilian law, which may not reflect the deceased’s intentions. Through a will, it is possible to:
- Define Each Heir’s Share: The testator can determine how their assets will be distributed, clearly establishing each heir’s share. This is especially important in complex family situations, such as children from different marriages or stable unions.
- Include Legatees: A will allows the testator to allocate part of their assets to people who are not direct heirs, such as friends, charities, or employees, through legacies.
- Appointment of Executors: The testator can appoint an executor, a trusted person responsible for ensuring that the provisions of the will are carried out and managing the estate until it is fully distributed.
- Protection of Vulnerable Heirs: In cases where there are minor heirs or heirs with special needs, the will can establish specific guidelines to ensure their interests are protected, such as the creation of guardianships or the stipulation of conditions for the use of assets.
- Avoid Family Conflicts: By clearly determining how the assets will be divided, a will can help avoid legal disputes and family conflicts that often arise in the absence of a well-defined succession plan.
Types of Wills and Their Validity
There are three main types of wills provided for in the Brazilian Civil Code:
- Public Will: Drafted in a notary’s office in the presence of a notary and two witnesses, this is the safest type as it is recorded and easily accessible after the testator’s death.
- Closed Will: Prepared and signed by the testator, it is delivered to the notary in a sealed envelope. The notary then draws up an approval term and records the will. This type of will can only be opened after the testator’s death, in the presence of a judge and witnesses.
- Private Will: Written and signed by the testator in the presence of three witnesses, this is the simplest form but also the most vulnerable, as it relies on the good faith of the witnesses and may be subject to legal challenges.
Legal Aspects and Limitations
It is important to note that the testator must respect the “legítima,” which corresponds to 50% of the estate and must be allocated to the mandatory heirs (descendants, ascendants, and spouse). The remaining assets, known as the available portion, can be freely distributed according to the testator’s wishes.
Additionally, a will can be modified or revoked at any time by the testator, provided they are in full possession of their mental faculties.
Conclusion
A will is an essential tool to ensure that the testator’s wishes are fulfilled and that the succession process occurs in a harmonious and secure manner. By using a will, the estate holder can ensure that their desires are respected, protect vulnerable heirs, and prevent future conflicts.
Consulting a specialized lawyer is crucial for drafting a legally sound will that meets the specifics of the case, ensuring peace of mind for the testator and security for the heirs.