# More on wills



## travelling-man (Jun 17, 2011)

Folks

FWIW, I've spent the last few months (on & off) looking at the will situation for ex pat Brits here in PT.

The latest email from my regular lawyer says: 

"About wills you don’t have any problem about make a Portuguese will because on the Portuguese will you can put what you want because the law that will be apply on your death will be your personal law (British). Of course you can make your will with your real wish".

She's a VERY thorough and organised lady & I have no reason to doubt her. That indicates to me that there is no reason to have to worry about the bizarre Portuguese thing about some of the property going to one's kids instead of all to one's partner.

Your comments will be welcome?


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## jerryceltner (May 15, 2012)

Hi,
I am in the process of making a will and have just spoken to my solicitor. He said that in the UK usually the assets are transferred to the remaining partner whereas in Portugal some of the assets have to be passed on to the children etc. His suggestion was to make a UK will and then have it translated into Portuguese and then everything can be passed onto the partner legally if that is what you want.


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## travelling-man (Jun 17, 2011)

Jerry

I've been looking into the thing about a will made in the UK being acceptable here and was told that it can be the case IF (note the big IF) the deceased still has assets in the UK.

The problem is I can't find out what the Portuguese definition of assets is. Do they mean I have to own a house in the UK or do they mean I have to own a bicycle or a painting in the UK for the UK will to be recognised here?

Our main worry is that we want to be 110% sure that we can leave everything to the surviving partner & not have to worry about the surviving partner having to pay the kids anything before the 2nd partner croaks. 

The more I look into it, the more complicated & confusing it gets!


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## jerryceltner (May 15, 2012)

As I said if the will is made in the UK ....That is your final will and testiment ......and if translated into Portuguese these are your wishes.
With me though I do still have a house in the UK but live here perminently. 
I left the house in the UK to my daughter but it was deemed a gift with reservation as my wife was allowed to live in the house until the day she died.
We therefore became Tennants in common where when the first partner died then their share of the house was passed onto the daughter and the wife could live there legally until she died. Saved inheritance tax of approx £70,000 on the half share.
Here I will leave a % to my daughter on our assets so no probs there.
I have a meeting with my solicitor on Tuesday when I will know more.
Watch this space.


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## travelling-man (Jun 17, 2011)

Thanks... I'll look forward to hearing the news.

Do you know or can you also find out if it has to be translated by anyone/anywhere special & does it then have to be registered anywhere?


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## jerryceltner (May 15, 2012)

Will Do.......sorry about the pun

The meeting is at 4pm so don't expect to hear anything before 6pm

Jerry


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## canoeman (Mar 3, 2011)

Regardless of whether your a Resident or Non Resident you should have a Portuguese Will for your Portuguese ASSETS (UK assets *are not taken into account* for Portuguese Probate but should any Stamp Duty be paid it can be offset against UK Inheritance Tax)
You can draft a Will in the English manner but it must be in Portuguese and Notarized here, Portuguese Law recognizes your country of Birth so you can leave your Estate as you wish, *you are not bound by the Portuguese Law on Succession*
If you rely solely on a UK that is not translated and Notarized, that Will has to be Probated in the UK before Portuguese Probate can commence

1 A Public Will is made in front of a Notary and Witnessed, it is Notarized and kept by the Testator (cheapest)
2 A Private Will is made in front of a Notary and Witnessed, it is Notarized but recorded in the Public Records (dearest)

You cannot make codicils to a Portuguese Will any changes reguire a new Will.
Trusts and Trustees are not recognized avoid
The concept of joint tenancy does not exist. As a result, anything held jointly
will be held under tenancy in common, including immoveable property and bank accounts. The asset will, therefore, not pass automatically to the other joint owner, but will fall under the estate of the deceased, and be dealt with under the general terms of his or her will. So if you have a joint Bank a/c then you must say who your half goes too.

Because of the Portuguese Law of Succession Wills are not generally made here, so if a Portuguese Solicitor/Lawyer doesn't know or understand that Portugal recognizes your country of Birth as your right to make a UK style Will, find another one who does, because it will always be a problem, firstly in drafting Will and secondly the procedure required to "prove" the Will as part of Probate


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## travelling-man (Jun 17, 2011)

Susan & I own the house & everything else outright & (except cars) everything is in joint names.

We want to make mirror/joint wills that leaves absolutely everything to the surviving partner & no-one else & only when the survivor croaks do we want everything to be split equally amongst the kids.

I do own a couple of pieces of worthless land in Africa but other than that, all of our possessions are here in PT.

For various reasons, we want to be absolutely 110% sure there are no loopholes whatsoever & every letter of the will has to be completely adhered to. 

Should we make our wills here in PT with a PT lawyer or in the UK with a UK lawyer & then have it translated and registered here?


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## canoeman (Mar 3, 2011)

The danger of having it done in UK is the wording and subsequent translation, you are far better to find a Portuguese Solicitor who has good command of English and understands your rights.

That way you can get the Will to reflect exactly what you want and be acceptable under UK Law, but not in conflict with Portuguese Law i.e trusts, ownership. The Will does have to be proven that it complies with UK Law by a UK Solicitor attached to UK Consulate, as I said as part of Portuguese Probate

We have done the same with our Portuguese Wills, each is a mirror of other except for names, everything is left to other with the proviso that in case of joint death then Xy goes to a,b,c,d and in what proportion, this section also includes dogs.

The surviving partner would then have to make a new Will as to who gets what.

Care should be taken if you intend to appoint an Executor especially if they are UK based.


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## travelling-man (Jun 17, 2011)

OK Thanks.

We hadn't considered who we should appoint to execute the will but will probably just have the lawyer who draws the will up do it for us.


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## canoeman (Mar 3, 2011)

Better for surviving partner to know what to do, then employ Solicitor for necessary bits.

It's not to complicated but like a lot of things here must be done within certain timescales


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## travelling-man (Jun 17, 2011)

OK thanks.


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## Algarve (Mar 30, 2011)

jerryceltner said:


> Hi,
> I am in the process of making a will and have just spoken to my solicitor. He said that in the UK usually the assets are transferred to the remaining partner whereas in Portugal some of the assets have to be passed on to the children etc. His suggestion was to make a UK will and then have it translated into Portuguese and then everything can be passed onto the partner legally if that is what you want.


Please NOTE TO MODERATORS, this is not spam, in this weeks free newspaper there is a seminar being held on the subject of dying in Portugal, it is free to members of AFPOP and a €10 charge for non members, I am nothing to do with this, but just read it in this weeks free paper TPN, it should give you the answers you are looking for. hope this is not breaking any forum rules by posting it as if it is I am very sorry


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## canoeman (Mar 3, 2011)

Which week? of Portugal News not in 8/09/12


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## jerryceltner (May 15, 2012)

Hi
Just come back from my solicitor and have gleaned this info.

1. Portugal do not understand Tenants in common.
2. Upon one partners death the estate is divided equally 50% to the surviving partner and 50% divided by the kids.
3. No way round this.
4. What you do is make a will in the UK then you can leave everything to your partner.
5. Bring the original back to Portugal where it will be professionally translated and certified by the solicitor and stamped. You do not have to go before a notary.
6. Job Done.
7. Total cost including translation 250/300 euro
8. Cost of UK solicitor to draw up the will.

That's basically it.


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## canoeman (Mar 3, 2011)

You can achieve 4,5 and 6 by going direct to a Notary with a translator.
4 it is not necessary to make the Will in UK, it is only necessary to make a UK style Will in Portugal .
There is a danger in 4 that terms used by UK Solicitors might not translate or meaning be the same in Portuguese. How many UK Solicitors will know Portugals law about Tenants in common, trusts or trustees

For anyone who might have children by a previous marriage or partnership that are not legally adopted then should be aware that only the children of the person that died will inherit free of Stamp Duty the other children would be liable to Stamp duty.

This is particularly important if you are leaving each other the "estate" then surviving partner makes a new Will leaving "estate" to children
A has 1 child B has 3 children.

Wills leaves "estate" to partner No Stamp duty, in case of joint death equal shares to children, in this case children treated equally No Stamp Duty
But
A dies first B inherits, B makes new Will equal shares to children, B dies, B's children inherit No Stamp Duty, A's child pays Stamp Duty on their share.

B dies first A inherits, A makes new Will equal shares to children, A dies, A's child inherit No Stamp Duty, B's children pay Stamp Duty on their share. 

After checking with our Solicitor then wording to this effect, will balance things out, Stamp Duty is 10% so could have a considerable impact

" the estate goes to the 4 children in equal parts with the condition that any tax or fees due to this inheritance is to be payed by all in equal parts."


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