ESTATE PLANNING AND INHERITANCE: THE IMPORTANCE OF THE WILL, AND THE DONATION OF GOODS

The estate planning is a way for you to organize and define it as the wealth of a person is to be distributed after your death. Although death is an inevitable reality, it is how we deal with it, especially in relation to the transmission of property, and rights, and can be planned in advance and carefully.

This plan aims to ensure that the order and the fulfillment of the will of the deceased, while also protecting the rights of the heirs, and of avoiding conflicts in the family, and are generally surrounded by the two main tools: the gift of life and for the last will and testament.

In Brazil, the Civil Code establishes the rules that establish the way in which heritage can be dealt with, particularly in relation to the protection of the heirs are required.

In this context, the brazilian legislation to create a balance between the freedom of the testator (the one who makes the will), and for the protection of the rights of the heirs. Therefore, it is essential to understand the ways of the donation, testament and new testament, and the legal implications of giving in to life as a legitimate part of the inheritance, and to the limitations imposed by the Civil Code.

In this article, we will cover the main concepts related to the covenant and grant, to explore the different aspects of these methods and how they operate in the context of estate planning.

Gift of life

The gift of life this is just one of the ways of the transfer of property to another person-even during the lifetime of the donor. Other than the will, and that happens after death, and the gift of life allows you, the donor will have the opportunity to see the satisfaction of your desires, and it is still alive.

This is the kind of gift can be used as a means of planning for the succession, allowing the stockholders to be streamed in and out to avoid the risk of conflict at the time of his death.

Should be noted that if the goods are donated to a property, the validity of the free will that requires the drafting of the deed (art. 108, DC and to register on the registration of immovable property (art. 1.245), as it is, without a record, the gift does not have any effect in relation to third parties.

In addition to this, the gift of life is to be subject to the specific rules, especially when it comes to a legitimate part of the estate, which must be complied with. That is, the donor may not donate goods, which, in the case of a death, is committed to the rights of the heirs are required.

Testament

The testament it’s a way for the declaration of the will made by a person who is to be executed after his death. It is one of the main instruments of the Law of Succession, being regulated by the articles of 1.857 at 1.990 of the brazilian Civil Code. It is, therefore, an act of unilateral, personal, revocable, the effectiveness of which does, after the death of the testator.

While it does offer a certain freedom, the will, you also need to follow all the legal regulations, in particular in relation to some legitimate, so that the failure will only be able to indicate freely to those who will get your assets out of the part, which corresponds to 50% of the total stockholders ‘ equity.

This means that you, the tester, you are free to choose the destination of up to 50 per cent of your goods, the called party is available.

There are many different types, will set out in the Civil Code, including the public, in the savannah and in particular, with the specific requirement for each and every one. In general, we can see that in the states

The audience is drawn up in the Tabelionato de Notas, in the presence of a notary public and two witnesses, one being automatically registered in the CENSEC the Central Law-of-Service and Electronic Log;
Cerrado’, is written by the testator, or by a third party, closed, sealed, and delivered to a notary public in the presence of two witnesses in order for it to be saved. The will remain a secret, and it only has of its content is revealed after the child’s death, and it can be open and read, in the presence of the court;
Especially it is written by the testator, and looked at the three witnesses, and then the death must be confirmed in court, to the effect (art. 1.876, civil code).

There are also special arrangements of the will to war or threat of war, or travel to you, such as maritime, aviation, or military.

In the testament, you can include a variety of provisions, including the choice of successors, the appointment of an executor, the appointment of an executor, and the provisions of the nature of non-interest.

For example, it is possible to provide for the authorisation of access to family members or attorneys of the medical records of the deceased, as well as how you can customize your digital legacy by naming a person you trust to unlock the phone, manage your email accounts, social networks, or request that we delete the content is in compliance with the LGPD, and the Civil rights Framework for the Internet.

Although you do not have the financial straight forward, these provisions protect the dignity, privacy, and the memory of the deceased, part of the estate planning in the digital reality art.

In all cases, the will may be revoked or changed at any time; provided, however, that compliance with the legal requirements.

But in the end, the one who is standing?

The standing is the share of 50% of the estate, which, by virtue of a law, it must be assigned to heirs, as necessary, to include the following: your spouse / partner (or partners), the ancestors (parents, grandparents, and all the descendants (children, grandchildren).

In respect of the spouse, it is important to point out that, it will not be the heir to need this if you are married, under the scheme, which will allow entitlement to inheritance, or concur with the descendants, or ancestors (art. 1.829, civil code). In the systems of separation, absolute and final in the aquestos, for example, the spouse’s participation may vary so it is important to analyse a case by case basis. In addition, as a general rule, ancestors (parents, grandparents) will only inherit if there are no top-down (art. 1.829, and (II).

In this case, the portion of the estate on the legitimate, it may not be laid freely by the testator, that is, it does not deserdar’ for these heirs, as they would like.

For a tester who wants to give away his assets, free-form, he may have called the ‘available’ out of the inheritance, which is the part that is left over after you have adjusted the part of a legitimate one.

The limits of the Donations will and Testament

So much for the gift of life and the will must comply with the limit for the standing. If the donation exceeds the value of the heirs may demand the return of the goods to be donated to compensation at the time of participation.

In addition to this, when a donation is made to an heir of life; it can be treated as an advance to the legitimate one. This means that the amount of some good or donated will be considered at the time of the estimate of the share of each heir in the inventory.

It is worth saying that only the offspring that are required for the collection (art. 2.002, civil code). The donations you make to your spouse, domestic partner, or other third parties do not form part of this account is, unless the donor has otherwise stated.

There are, however, the ability of the donor to include a provision for the waiver of the collection, which states that one as well, donated will not be counted as part of the estate, but also as an individual benefit of the heirs. Such a clause can be included either at the time of the donation, as it will, as long as you respect the limit on the amount available.

Some of the other terms that it can be placed both in giving and in the last wills and testaments, which include:

Incommunicability-Prevent the well-donated/tested, it is considered to be a part of the community property in a marriage to the trustee/beneficiary,
amounts that cannot be attached: it Ensures that the property donated by/tested-will not be seized in the event of a debt, the trustee/beneficiary,
Inalienability: which Restricts the sale or transfer of the well, during the lifetime of the donee/beneficiary
‘s Enjoyment: Grants from the donor/testator or by another person, for the right of use of the donated good/tested for as long as I live;
Fallback: Allows the donor to determine that the property to automatically return to its stockholders, or to the person indicated above, if the grantee dies before him, art. 547 CC). In the testaments, there is a reversal, as the heir set up to die before the testator, then the provision shall lapse, unless the testator has provided for replacement of the ordinary in terms of art. 1.947, and the s. s., of the Civil Code.

Other limitations may be imposed by the donor/testator, as to the conditions or arrangements on the use of the property. However, these provisions have not infringe on the legitimate part, or the provisions on the rights of the heirs are required.

Conclusion

To donate goods, or to draw up a will is legitimate ways to decide on the fate of your very own property. However, it is important to understand that there are rules that must be followed, especially with regard to the protection of the heirs are required.

The use of gifts in life, and it will, it is possible to establish conditions that guarantee the continuity of the goods and to maintain the legacy of the family. The estate planning appropriate to make sure that your goods are to be transmitted, in accordance with his will, and helps to prevent conflict, reduce costs and, at the same time, with respect to the rights of the heirs.

However, it is essential to remember that so much of the gift of life and the transmission will be subject to the ITCMD, state tax, whose tax rates and bands of the exemption varies greatly in accordance with local laws and regulations. To assess in advance the impact of such a tax, and, where applicable, schedule of donations, over time, can mean the economy is relevant and to enhance the effectiveness of the plan.

Therefore, the dimensions of social, economic, family, and the tax should be assessed in an integrated manner, preferably with the advice of the legal and accounting expertise.

Reference (s):

BRAZIL. Lei nº 10.406, de 10, jan. 2002. On the Civil Code. The Official journal of the european Union: Section 1 Brasília, DF, brazil, on 11 jan. 2002. Available at: https://www.planalto.gov.br/ccivil_03/leis/2002/l10406.htm. Available at: [accessed 13 jun. The year 2025.

BRAZIL. Law no. 12.965, de 23 apr. 2014. It establishes the principles, guarantees, rights and obligations for the use of the Internet in Brazil’s Marco Civil da Internet). The Official journal of the european Union: Section 1 Brasília, DF, brazil, the 24-oct. 2014. Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2014/lei/l12965.htm. Available at: [accessed 13 jun. The year 2025.

BRAZIL. Lei nº 13.709, the 14th of August. 2018. The General law on the Protection of Personal Data (LGPD). The Official journal of the european Union: Section 1. the capital city of Brasilia, the 15th of August. 2018. Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2018/lei/L13709.htm. Available at: [accessed 13 jun. The year 2025.

BRAZIL. Law no. 13.787, 27 dec. 2018. On the scan, and the use of the computer system for storage, storage, and handling of the medical record of the patient. The Official journal of the european Union: Section 1 Brasília, DF, brazil, on 28 dec. 2018. Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2018/lei/L13787.htm. Available at: [accessed 13 jun. The year 2025.

SÃO PAULO (State). Law no. 10.705, 28 dec. The year 2000. It’s about a Tax on the Transmission of the “Cause of Death” and a Donation of Any Property, or other Rights (ITCMD). Diário Oficial do Estado de São Paulo, São Paulo, 29 dec. The year 2000. Available at: https://www.al.sp.gov.br/repositorio/legislacao/lei/2000/lei-10705-28.12.2000.html. Available at: [accessed 13 jun. The year 2025.

Camila dos Santos
Graduated in Law at Centro Universitário Padre Anchieta (2024). She is the author of the Articles. Paralegal have Associated with it.

Helen Rodrigues de Souza
She graduated in Law from the Pontifical Catholic University of Campinas, sp, enrolled with the Brazilian bar association, São Paulo (OAB/SP) (2019). Training in Human Rights and Social, from the Portuguese Catholic University in Lisbon (2020). Training in Data Protection Officer by – Law, the General Data Protection by Renato Saraiva Education Complex (2021). College Education on the Topics of Advanced Private and Public Law from the University of Santiago of Compostela (in 2021). A Master’s degree in Business Admnistration in Tax Management from the University of São Paulo and the Escola Superior de Agricultura ‘ Luiz de Queiroz (2022). Participation in the book “the Tax on agriculture”, by editora Lumen Juris (2023). The training in Litigation, Strategic, Getulio Vargas Foundation (2024). A post-graduate degree in Corporate Law from the Pontifical Catholic University of Rio Grande do Sul (2024). Attending a Latin-Legum Magister in Corporate Law and Capital markets, the Brazilian Institute of Capital markets in Sao Paulo. She is the author of the articles. As secretary-General of the Committee of the Business Law of the OAB/SP) the 33rd Subsection, Jundiaí, SP, brazil). The advocate and head of the Department, the Advisory does have Associated with it.