Brazilian Inheritance Law: Wills and Estates

Published on March 3, 2026 and written by Cyril Jarnias

Exploring Brazilian inheritance law reveals not only the complexity of inheritance regulations and wills, but also how local culture influences these legal practices.

In this South American country, where family traditions play a crucial role, understanding how assets are distributed and how legislation adapts to new societal realities is essential for anyone navigating this field.

This article examines key aspects of the Brazilian legal system, from legal procedures to cultural implications, providing a fascinating and detailed overview for those interested in how succession matters are structured and managed in one of the world’s largest economies.

Brazilian Inheritance Law: The Basics

Fundamental Principles and Legal Framework

In Brazil, inheritance law is primarily governed by the Brazilian Civil Code (Law No. 10.406/2002), supplemented by the Code of Civil Procedure for procedural aspects, and the Federal Constitution which guarantees the right to inheritance. The succession opens at the deceased’s last domicile, and inheritance is immediately transferred to heirs but remains undivided until formal asset distribution.

Heir Hierarchy in the Absence of a Will (Legal Succession)

Without a will, the law establishes a strict hierarchy of heirs:

Heir Rank	Details
Descendants	Children, grandchildren (and their descendants), surviving spouse concurrently
Ascendants	Parents, grandparents, etc. (if no descendants), surviving spouse concurrently
Surviving Spouse	According to marital regime and presence of other heirs
Collaterals	Siblings, nephews, nieces, uncles, aunts, cousins (up to 4th degree)
State	In complete absence of legal heirs

Important Notes:

• The surviving spouse inherits concurrently with descendants or ascendants, depending on the applicable marital regime.
• Adopted and biological children have equal rights.

Legitimate Share and Available Portion

• Legitimate Share: At least 50% of the estate must go to “reserved heirs” (descendants, ascendants, and spouse).
• Available Portion: The remaining 50% can be freely allocated by will to any person or entity.

Role of Notaries in Succession

• Notaries handle extrajudicial successions (without disputes, adult heirs in agreement), enabling faster settlement via notarial act.
• In cases of disagreement, minor heirs, or existing wills, the procedure is judicial, requiring a judge and attorney.

Taxation: Inheritance Tax (ITCMD)

• ITCMD (Tax on Causa Mortis Transmission and Donation) is a state tax with rates varying by state (typically 4-8%).
• It’s calculated on the market value of assets transferred at the time of death.
• ITCMD payment is mandatory to finalize inventory and distribution.

Concrete Distribution Examples

Situation	Legal Distribution Under Brazilian Law
Deceased leaves spouse and two children	50% of estate: legitimate share to children and spouse (equal parts); 50%: available portion, freely allocated or equally distributed without will
Deceased without children, but with parents	Inheritance shared between ascendants and surviving spouse
Deceased without direct heirs	Succession goes to collaterals up to 4th degree, otherwise to the State

Succession Process Summary

• Obtain death certificate.
• Open inventory (judicial or notarial).
• Identify heirs and assets.
• Pay ITCMD.
• Distribute and transfer assets according to law or testamentary wishes.

Key Takeaways:

• Half the estate must go to reserved heirs.
• Notaries can intervene if all conditions for extrajudicial succession are met.
• ITCMD rates vary by state.
• Heir order is strictly regulated by the Civil Code.

Regulations for Expatriates: What You Need to Know

Tax Rules Applicable to Foreigners Owning Property in Brazil

Any property located in Brazil, whether owned by an expatriate or Brazilian citizen, is subject to ITCMD tax. Rates and procedures vary by federal state.

Foreign heirs are subject to the same succession rules as local citizens for Brazilian-located assets.

Without an international convention covering inheritance rights between Brazil and the home country, there’s a risk of double taxation: the estate may be taxed by multiple states.

Deceased/Heir Situation	Applicable Rights	Tax Risk
Deceased resident in Brazil	Succession governed by Brazilian law for Brazilian assets; ITCMD due.	Possible double taxation if heirs are tax residents in another country without specific convention.
Deceased resident abroad	Same application for any Brazilian-located property; exclusive jurisdiction of Brazilian courts for these assets.	Same as above; also consider tax rules of deceased’s or heirs’ country of residence.

Example: A French expatriate dies owning a house in Rio – their succession will be subject to Brazilian law (ITCMD), but heirs residing in France may also have to pay French taxes if no tax treaty exists.

Conditions for Establishing a Valid Will in Brazil

An expatriate can draft a will valid under Brazilian law, provided they follow local legal forms (public will before a notary or holographic will with witnesses).

There is no major difference between expatriates and local citizens regarding formal requirements.

However, any provision contrary to the hereditary reserve under Brazilian law (minimum 50% reserved for descendants/spouse) would be invalid for locally situated assets.

International Conventions Influencing Regulations

Brazil lacks major bilateral conventions exclusively covering inheritance rights with most Western countries, including France.

The absence of agreements often leads to separate management (“plurality of successions”): each state taxes according to its own legislation; limited coordination except for specific mutual recognition.

Assets Located Abroad Belonging to an Expatriate

Brazilian courts refuse jurisdiction over inventory/distribution concerning only assets located outside national territory.

For calculating certain aspects like the hereditary reserve, they may exceptionally consider foreign values already distributed elsewhere if they also concern beneficiaries protected by the Brazilian Civil Code.

Recommended Legal Precautions for Transferring Brazilian Assets

• Always draft a will complying with local requirements
• Conduct estate planning considering international tax risks
• Regularly verify tax status with both home country and local tax authorities
• Prepare bilingual or multilingual documentation facilitating international recognition/transcription
• Consistently consult a notary specialized in international successions

Intestate Successions (“Without Will”): Specific Impact for Expatriates

In the absence of a will:

• The succession is fully governed by the Brazilian Civil Code for all assets in Brazil:
  • Strict application of legal order – direct descendants then surviving spouse take priority;
  • Impossibility of favoring certain beneficiaries through voluntary acts;

For expatriates, this means:

• No special treatment or derogatory clauses allowed regarding unformalized personal wishes;
• Potential complexity when multiple nationalities/marital regimes/beneficiaries reside outside the territory;

⚠️ When expatriating, proactively planning asset transfer through appropriate acts often prevents transnational family conflicts and costly double taxation!

International Will and Its Implications in Brazil

International Will: Definition and Characteristics

The international will is a legal instrument allowing a person to determine asset distribution after death, designed to be recognized in multiple countries. It was established by the Washington Convention of October 26, 1973, aiming to harmonize will formalities to facilitate international recognition and execution.

Key characteristics of international wills:

• Recognition in countries party to the Washington Convention.
• Allows designation of applicable succession law.
• Requires specific formalities (written act, declaration before two witnesses and an authorized person, typically a notary or equivalent).
• Can be drafted in any language.
• Offers great flexibility for organizing transfer of assets in different countries.

Characteristics	Description
International Recognition	Valid in states party to Washington Convention
Flexibility	Possibility to designate applicable succession law
Formalities	Written act, declaration before two witnesses and authorized person
Language	Free choice of language, even unknown to testator

Recognition in Brazil and Legal Framework

Brazil has not adhered to the 1973 Washington Convention on the form of an international will. Thus, the international will as defined by this convention is not recognized in Brazilian law, and there’s no specific procedure in Brazilian legislation for receiving or executing an international will drafted according to Convention standards.

Practical Implications for Brazilian Nationals or Foreigners Residing in Brazil

For Brazilian nationals or foreigners living in Brazil wishing to establish an international will, several points must be considered:

• The international will has no direct effect in Brazil: to be valid and enforceable, it must comply with formal requirements under the Brazilian Civil Code, which only recognizes public, holographic, and mystic wills.
• A will drafted abroad may eventually be recognized in Brazil but must undergo judicial homologation proceedings (processo de homologação de sentença estrangeira) before the Superior Court of Justice (STJ), which will verify its formal regularity and conformity with Brazilian public order.
• Wills established abroad, even in international form, may face legal obstacles during execution in Brazil, particularly if they don’t respect form rules or the hereditary reserve for necessary heirs.

Advantages and Legal Obstacles

Advantages (theoretically):

• Could centralize estate planning for assets in multiple countries.
• Would offer increased security for transferring assets abroad.

Obstacles (practically in Brazil):

• Need to comply with Brazilian will forms.
• Possible refusal of execution if will contradicts public order or mandatory Brazilian succession rules (especially hereditary reserve).
• Lengthy and costly judicial procedures for homologation.

Execution of International Wills in Brazil

Executing an international will in Brazil generally requires:

• Sworn translation of the document.
• Homologation by the Superior Court of Justice (STJ) if the will was established abroad.
• Intervention of a Brazilian notary for will publication and succession opening.
• Verification of compliance with reserved heirs’ rights and local law rules.

Step	Procedure in Brazil
Translation	Sworn translation into Portuguese
Judicial Homologation	Request to STJ to validate foreign will
Will Publication	Intervention by Brazilian notary
Respect for Reserved Heirs	Verification of compliance with Brazilian succession law

Concrete Examples and Case Law

• Rare Brazilian case law mainly concerns recognition of public or holographic wills drafted abroad, subject to homologation.
• No major jurisprudence has validated execution of an international will under the Washington Convention in Brazil due to non-adherence to the convention.
• In practice, Brazilian notaries recommend establishing a will compliant with local law to avoid disputes or delays in succession transfer.

To Remember:

The international will is not recognized in Brazil due to non-adherence to the Washington Convention. Any international estate planning involving Brazil must respect forms provided by the Brazilian Civil Code and anticipate judicial homologation procedures for foreign wills.

Inheritance Challenges for Non-Residents

Non-residents facing succession in Brazil encounter specific legal, administrative, and tax challenges related to multiple legal systems and local requirements.

Main Legal Complications for Non-Residents:

• Brazilian law applies exclusively to Brazilian-located assets, even if the deceased or heir is foreign.
• Brazilian courts have sole jurisdiction for inventory, distribution, and will homologation concerning these assets.
• Brazilian hereditary reserve rules (minimum 50% of estate reserved for legal heirs) may significantly differ from principles in heirs’ home countries (especially regarding testamentary freedom or reserved portion).
• Impossibility of concluding certain succession agreements valid elsewhere (e.g., succession pacts prohibited before official succession opening).

Frequent Administrative Obstacles:

• Need to translate all foreign documents into Portuguese by sworn translator.
• Obligation to apostille documents issued outside Brazil under the Hague Convention to guarantee local validity.
• Complex procedures with consular and judicial authorities to prove heir status or recognize a will drafted abroad.

Tax Implications for Non-Residents:

Asset Nature	Applicable Tax Regime	Specific Risk
Assets in Brazil	ITCMD tax, rate varies by state	Possible double taxation
Assets outside Brazil	Potentially subject to local taxation	Absence of bilateral agreement

• Inheritance tax rates and methods vary by each Brazilian federal state.
• Non-residents risk double taxation: taxation in Brazil + duties in home country if it doesn’t provide specific exemption or hasn’t signed tax treaty with Brazil.
• In France for example: possible application of French taxes on all assets received within 6 years after returning to France even if succession opened in Brazil.

Influence of International Conventions:

• Some multilateral conventions facilitate mutual recognition of official documents (apostille), but few expressly cover inheritance taxation.
• Without conventions between concerned countries, prevalence of territorial principle leads to tax and legal complexity.
• Limited international recognition regarding foreign wills or direct heir designation.

Practical Tips for Better Preparation:

• Consult an attorney specialized in international succession law thoroughly familiar with both Brazilian system and that of the heir’s country.
  • Verify compatibility between foreign testamentary provisions and local Brazilian requirements.
  • Anticipate translation/apostille when preparing succession file.
  • Assess cross-border tax risks with international tax advisors to avoid double taxation.

Proper preparation enables more efficient and secure management, reducing uncertainties related to complex cross-border procedures.