Succession can occur in two main ways: through will or by application of Legal inheritance foreseen in Civil Code. When a will exists, it reflects the deceased's wishes regarding the distribution of their assets. However, even in these cases, there are limits imposed by law to protect certain close relatives, known as forced heirs. Understanding this relationship is essential to avoid conflicts and to plan for a secure transfer of assets.
What is the legal inheritance
A Legal inheritance It is the portion of the inheritance that the law mandatorily reserves for certain family members, regardless of what is written in the will. They are considered forced heirs the spouse, the descendants (children, grandchildren) and, in their absence, the ascendants (parents, grandparents).
This minimum share is protected and cannot be reduced or excluded by the testator, except in exceptional cases of succession indignity or disinheritance provided for by law.
O que é o testamento
O will It is a unilateral legal act through which the testator freely disposes of their assets, gratuitously, for after death. It can be public, closed, or international and must comply with the formalities laid down in the Civil Code.
Even though it is the manifestation of the testator's will, the will only prevails in the disposable part of the inheritance, that is, what is left after the legitimate share of the inheritance has been secured.
What prevails: a will or legal inheritance
In Portugal, the Legitimate inheritance prevails over the will Regarding the quota reserved for forced heirs. Thus, if the will assigns all the assets to a person or entity, that provision will have to be reduced to ensure that the forced heirs receive the portion that the law assigns to them.
If there are no forced heirs, the will can freely dispose of the entire estate. If there is no will, the statutory succession provided for applies. Who is entitled to inherit.
How is an estate distributed when there is a will
When there is a will, the distribution follows this scheme:
Firstly, the unavailable portion of the inheritance is calculated, which corresponds to the legal inheritance of heirs protected by law.
The remaining part, called the available quota, is distributed as stipulated in the will.
Should the will exceed the available quota, the testamentary provisions shall be reduced to ensure the rights of the legitimate heirs.
The role of a lawyer in probate and inheritance matters
A supportive Solicitor is essential for:
Verify the validity of the will and its legal compliance.
Calculate the legal and disposable shares.
Representing heirs or legatees in inventory process.
Avoid litigation related to the interpretation or performance of the will.
Conclusion
In the dispute between will e Legal inheritance, the Portuguese law always protects the share of the forced heirs. A will has the power to dispose of the remaining assets but cannot annul legally guaranteed rights. Careful succession planning and support from a Solicitor in divisions and inheritances are key to ensuring the deceased's wishes are fulfilled within the bounds of the law and without causing family conflict.
note: The information presented in this article is for informational purposes only and should not be construed as legal advice. Whilst every effort has been made to ensure the accuracy of the content, we accept no responsibility for any inaccuracies, omissions, or legal changes that may occur after publication. If you are facing a specific situation or have queries regarding any matter discussed, we strongly advise consulting a solicitor for advice tailored to your circumstances.
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