Thinking about death is not pleasant and we want this moment to be as far away as possible. However, the present, to which no one is indifferent, has come to alert us to the volatility of our lives, as if reminding us that death can come at any time, without “prior warning”.
How many times do we hear it said “when I die, I want my goods to be distributed in the following way…” or “when I die, I don't want masses to be said for my soul and my ashes to be deposited in the garden of my house…” . If you want your “wishes” or last will to be fulfilled, the Law gives you that possibility, all you need to do is make a will.
The will can be made by anyone, that is, all people have the right to make one, with the exception of non-emancipated minors and people interdicted for psychic anomalies.
The will is a personal act, and cannot be done by a representative, and singular, since the Law does not allow the testing of more than one person in the same act.
The will has different forms, the most common being the public will and the closed will. The first is the will written by the notary in his notebook; the second is the will written and signed by the testator or by someone else at his/her request. To be valid, it must be approved by the notary, under penalty of its nullity.
In Portugal, it is not possible to distribute all the goods according to the testator's will. This possibility is only available to the testator who does not have a living spouse, descendants or ascendants.
All other testators have limitations on the distribution of their assets to third parties, because there is a basic principle in Portuguese legislation that safeguards the legitimate heirs, that is, to whom a part of the assets is reserved: the so-called Legitimate.
According to the Civil Code, legitimate heirs (spouse, descendants and ascendants) are always entitled to a part of the inheritance, regardless of the will of the testator.
It should also be added that the will, in addition to being a personal act, as mentioned above, is also a revocable act. This means that, at any time, it can be revoked at the will of the testator, through another will, for example.
In the will, revocation or instruments of approval of the closed testament, in addition to the testator, two instrumental witnesses must intervene.
All wills are confidential, even the will written by the notary, since, although it is called a public will, it is only made public after the testator's death.
The will is an important document that can prevent conflicts in families, especially when there are several assets to be shared, while guaranteeing the will of the testator.
Intending to make a will, seek advice from a Solicitor, a professional who will help you clarify any doubts.
Author: Natércia Reiga is a solicitor and enforcement agent
Note: Article published under the partnership between the Sul Informação and the Order of Solicitors and Enforcement Agents
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