The will: when it makes sense in succession planning

A will is an instrument by which a person expresses, during their lifetime, how they wish part of their assets to be allocated after death. Although often associated only with large fortunes, it can be useful in a variety of family contexts.

What a will can and cannot do

Under Brazilian law, the assets of a person who has necessary heirs - such as descendants, ascendants, and the spouse, as the case may be - are divided, in general terms, into two parts: the forced share, reserved by law to those heirs, and the freely disposable portion, over which the person has greater freedom to dispose.

The will acts precisely on the freely disposable portion. This means that, as a rule, it is not possible to use a will to exclude the necessary heirs from the forced share, except in specific situations provided for by law. Understanding this division is essential for the document to be effective and not to be challenged.

When a will makes sense

A will can be especially useful in certain situations. It allows a person to direct the freely disposable portion to a particular person or purpose, to provide for someone who is not a necessary heir, and to leave instructions that reduce future doubts.

• Blended families, with children from different relationships
• The wish to benefit someone who is not a necessary heir, within the freely disposable portion
• The intention to organize in advance the allocation of specific assets
• The desire to reduce the risk of conflicts among heirs

It is not necessary to have substantial assets for a will to be useful. In many cases, its value lies less in the size of the estate and more in the clarity the document brings to the family. By recording their wishes in an organized way, a person reduces the room for divergent interpretations and for disputes that not infrequently strain family relationships for years.

It is also common for a will to be used to name the person who will be responsible for carrying out its provisions, known as the executor, and to leave instructions about assets of more sentimental than economic value. These details, often overlooked, tend to carry great weight in the relationships among the heirs.

The will as part of a broader strategy

A will does not have to act in isolation. It can be combined with other planning measures, such as gifts during one's lifetime and the setting up of a family holding company. Combined coherently, these instruments tend to offer a more complete organization, always respecting the legal limits. It is also important to remember that the transfer of assets arising from death involves, as a rule, the levy of the ITCMD (Imposto sobre Transmissao Causa Mortis e Doacao, a state tax on transfers by death and on gifts), an aspect that must be considered in the planning as a whole.

It is worth noting that there are different forms of will provided for in the legislation, each with its own validity requirements. For this reason, drafting requires technical care: small defects may compromise the effectiveness of the document. There is no guarantee that a will will never be challenged, but rigor in its preparation reduces that risk.

This content is for informational purposes only and does not constitute legal advice. Each case requires individual analysis by a qualified professional.