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.
Other factors that have led families to consider beginning succession planning include the bill in progress in the Legislative Assembly of the State of São Paulo (Bill No. 250/2020), which proposes changes to the taxation of operations subject to the Tax on Transmission Causa Mortis and Donation (ITCMD), with progressive rates (reaching up to 8%).
There are several instruments that can be used for the organization and structuring of succession planning, such as the will, change of the marriage regime, prenuptial agreement, assets abroad, donation with reservation of usufruct of real property, of company quotas, of shares, of investment fund quotas, holdings, etc.
Specifically with regard to the will, this is an important instrument in the organization of the succession because it is, in most cases, the first step toward succession planning, since it does not transfer the assets, but has the objective of regulating the succession, that is, the rules for the division of the assets among the heirs and beneficiaries.
The will may be public or private, having, therefore, the characteristic of being the last-will dispositions of the testator, in which it is possible to leave recorded the motivations and the rules for the destination of the available assets, according to the will of the testator who accumulated the assets throughout their life.
In which cases is a will recommended?
The will is recommended for disposing of 50% (fifty percent) of the testator’s assets (the available portion), since the other 50% (fifty percent) are part of the forced heirship (legítima) and are, mandatorily, transmitted to the necessary heirs (descendants, ascendants and the spouse).
To better explain the situation of the spouse, since it is always a point of doubts and questions. In marriages formalized before 1977, the rule was the regime of universal community of property and, therefore, the spouse is not an heir, but rather a co-owner of the marital half (meeiro). To be a meeiro means that the assets acquired before and during the marriage belong to the couple, with the exception of assets donated with a clause of incommunicability.
After 1997, the rule became that of the partial community of property and, consequently, the spouse is a co-owner of the marital half (with regard to assets acquired during the marriage) and an heir if the deceased had separate assets. In the case of legal or mandatory separation of property, in the case of a spouse over 70 years of age, Precedent 377 of the Federal Supreme Court (STF) recognizes the right to the marital half of the assets acquired during the marriage, but there is no right to inheritance if the deceased had descendants and ascendants. And, with regard to the conventional total separation of property, the spouse is considered a necessary heir.
Therefore, the recurring doubt with regard to the dispositions of the will is whether it is possible to exclude the spouse from the forced heirship if the marriage is under the regime of conventional separation of property. The answer is no, because, as of 2003, when the new Civil Code came into force, the spouse, regardless of the marriage’s property regime, was elevated to the condition of heir, competing with the children and ascendants.
Therefore, the regime of total separation of property in marriage only segregates the assets if dissolution of the marriage occurs, not applying to the event of the death of the spouse.
To facilitate the understanding of the applicability of the will, some examples of possible testamentary dispositions, if there are necessary heirs:
- Increase the share of heirs and beneficiaries: for example, including a third party as a beneficiary of the inheritance or distributing the heirs’ share in the inheritance unequally to suit the testator’s wishes with children from various marriages, children with different needs and ages, etc.;
- Division of the assets in the best possible manner, such as, for example, to avoid co-ownership among heirs in real property, since co-ownership hinders administration and sale, in case there is no consensus among the heir-owners;
- Appointment of guardians and curators for minor and special-needs children;
- Rules for managing the assets of special-needs children;
- Encumber the transmitted assets with restrictive clauses (incommunicability, non-attachability and inalienability);
- Waiver of the duty to bring into hotchpot (colação); for example, if a child received help from the parents, the testator may waive the duty to bring into hotchpot, avoiding future discussion among the heirs about an advance on the forced heirship, provided that the donations made did not exceed the available portion.
Another case in which the will is recommended is if the deceased does not have necessary heirs (descendants, ascendants and the spouse), since they may freely dispose of their assets, leaving them to friends, employees, distant relatives, charitable institutions. And, in this case of there being no necessary heirs, if they do not leave a will, their assets will go to the optional heirs (collateral relatives up to the 1st degree: siblings, nephews/nieces, uncles/aunts and cousins). And if there are no optional heirs, their assets will go to the Municipality.
There is no standard for a will. Each case has its particularity and the effective will is the will that is adapted to the reality of the testator, the heirs and the beneficiaries.
This article is generic and informative in nature; it does not constitute legal opinion for any specific case.
Read also:
What are the advantages of making a will?
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