After the death of a loved one, in addition to mourning, the relatives need to overcome a series of bureaucratic procedures before moving on, among them the one involving the calculation of the inheritance, if any. When a person dies, the family has 60 consecutive days to file the probate inventory or the so-called listing of assets (a more direct partition procedure), otherwise fines may be imposed.
From then on, the time to conclude the procedures and the effective succession of the assets varies widely, ranging from days, when everything is done amicably and out of court, to even decades, should the heirs enter into litigation over the division of the estate.
First of all, it is necessary to verify the existence of a will left by the deceased. While still alive, a person may determine the destination of up to 50% of their assets, the so-called available portion. The other half, called the reserved portion (legitimate share), must necessarily go to the legal heirs.
Right to inheritance
To calculate how much of the inheritance is due to each person, it is first necessary to verify the existence of the so-called necessary heirs, who have priority in the succession.
Under the Civil Code, the following have priority rights to the assets: descendants (children or grandchildren); the surviving spouse; and also ascendants (parents or grandparents of the deceased).
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If there is a spouse, the calculation of the division also depends on the property regime, whether universal or partial community of property, and also on the nature of the assets, whether private or jointly owned. If there are children, it affects the calculation whether they were had in common or are the product of another relationship.
With all these details, it becomes quite complex to anticipate the percentage of the total assets that each heir will receive. “Succession has a general rule, but it is necessary to analyze case by case to know who inherits what,” explains a lawyer specializing in civil, family and succession law.
In the absence of necessary heirs, collateral relatives may be called to inherit: siblings, nephews and nieces, uncles and aunts, and cousins, of different degrees. The calculation of the partition, in these cases, may become even more complex, owing to various conditions provided for in the Civil Code.
According to the specialist, everything depends on who inherits, whether only siblings, whether siblings and nephews/nieces, whether uncles/aunts, whether cousins. A general analysis of each case must be carried out. Unlike children, who as a general rule will inherit equally. It is also important to remember that there is no distinction between the types of filiation, whether biological, civil (adoption), or socio-affective.
Costs involved
Whatever the calculation of each share, there are costs that are universal, falling upon the total of the assets to be inherited, such as court and notarial fees, attorneys’ fees, and the transfer tax due to death (causa mortis), which varies from state to state, and may range from 3% to 8%.
To avoid surprises, lawyers in the field usually advise their clients to set aside 15% to 20% of the total value of the assets for these payments.
It is always worth remembering that if the deceased had debts, they must be deducted from the assets left behind, possibly even reducing the inheritance to zero, should the amount of the claims exceed that of the available assets. “In that case, the heir is liable only up to the limit of the assets received as inheritance; the debt does not reach into their personal assets,” says the specialist.
In some cases, it is possible that the inherited amounts are not immediately available, but remain deposited in an account under the responsibility of the Courts. For example, until minors turn 18 years old.
Finally, the lawyer recalls that there are still controversial situations, such as the debate over whether unmarried partners without a stable union are necessary heirs or not. In these cases, a uniform legal understanding has not yet been consolidated, making it even more difficult to predict the outcome of an inheritance partition.
Probate inventory – will – succession planning
Succession planning, a subject often avoided by families, has been reconsidered after this Covid-19 pandemic, since there is a general perception that life is fleeting and that unpredictable and impossible events can happen. This article highlights the will as an instrument that can be used. Click here to read
Source: Agência Brasil
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