When it comes to inheritance law, we are faced with a topic that is often linked to negative feelings, which combine grief for the deceased person with potential disputes over the division of assets left behind.

Inheritance law deals with a constitutional guarantee, ensuring that heirs inherit the assets of the deceased. 

However, a series of obligations and prerogatives permeate this legal sphere, guaranteeing the legitimacy of the procedure and allowing for the effectiveness of constitutional protection.

Rights of Heirs

Brazilian law guarantees a series of protections to heirs, allowing them access to their constitutional right to inheritance, which represents their main prerogative. This legal provision enables the succession of assets left by the deceased.

This prerogative arises upon the death of the deceased , according to article 1.784 of the Civil Code, which establishes the automatic transmission of inheritance to the legitimate and testamentary heirs at the moment of the opening of the succession. In other words, the right of succession is acquired upon death, regardless of the formalization of the inventory.

The probate process depends on the heirs' actions, and any heir can request the opening of probate, regardless of the others' agreement. This is especially important in cases of family disputes, ensuring that the succession process is not indefinitely delayed.

Legitimate and Testamentary Heirs

Legal heirs include descendants (children, grandchildren), ascendants (parents, grandparents), surviving spouse or partner, and, in their absence, collateral relatives up to the fourth degree. Testamentary heirs are those named in a valid will, and may or may not be family members.

At the same time, in cases where the deceased were married or living in a stable union at the time of death, under property regimes that provide for the sharing of assets, the surviving partner is guaranteed the right to half of the property. 

This means that the spouse or partner is entitled to half of the assets acquired during the relationship, regardless of inheritance rights. However, this division of assets is not the same as inheritance; it is a right belonging to the spouse individually.

It is important to highlight that, even if some litigation occurs during probate proceedings, the heirs have the right to be informed about all of the deceased's assets, including property, liabilities, and debts. 

This includes the presentation of documents, bank statements, contracts, and any other information necessary for the assessment of assets. Concealing information by an heir or the executor may result in the annulment of acts and legal liability. 

Regarding inheritance rights, heirs of the same class (for example, all the deceased's children) are entitled to an equal division of assets, unless otherwise stipulated in a will or when there are specific agreements between the heirs. This equality aims to preserve fairness in the division of the estate and avoid unnecessary litigation.

Finally, if any heir believes that a will was drawn up under duress, fraud, or in a way that violates the law (such as violating the legal share, which is the portion reserved for necessary heirs), they have the right to challenge it in court. This possibility ensures that all heirs can question any formal irregularities.

Duties of Heirs

Although heirs have a number of rights, there are obligations to be observed. The first of these is the duty to initiate probate. Heirs have a legal obligation to start the probate process within two months of the death, as stipulated in article 611 of the Code of Civil Procedure. Failure to comply with this deadline may result in penalties on the inheritance tax (ITCMD) and may hinder the regularization of assets.

At the time of opening the probate proceedings, the heirs must consensually appoint an executor to conduct the process. The executor may be one of the heirs, the surviving spouse, an executor of the will, or, in the absence of agreement, someone appointed by the judge. The executor has important responsibilities, such as the administration of the assets and the rendering of accounts, and their selection must be made carefully. 

Presentation of Assets and Liabilities

After probate proceedings begin, the heirs have a duty to present to the court or registry office all assets and debts left by the deceased. This includes real estate, vehicles, bank accounts, investments, movable property, and financial liabilities. Deliberate concealment of assets can lead to the exclusion of the defaulting heir from the inheritance, as well as other civil and criminal penalties. 

Before dividing the estate, it is necessary to settle the debts left by the deceased. In this context, the heirs have the duty to use the inherited assets to satisfy the outstanding obligations, respecting the limit of the value of the inherited estate. If the debts exceed the value of the assets, the heirs are not liable with their personal assets, being limited to the value left by the deceased.

Valuation of Assets for Fair Division

For the division to be fair, the assets need to be valued accurately and fairly. The heirs have a duty to cooperate with the valuation of the assets, providing information and allowing the inspection of real estate and other assets subject to division. 

As previously described, except in cases of express agreement, the heirs must respect the equal division of assets, as provided by law, so that each has effective access to their share. Attempts to obtain undue advantages or to harm other heirs may be challenged in court. 

The probate process generates expenses, such as court costs, attorney fees, and inheritance tax. Heirs have a duty to share these expenses proportionally to their share of the inheritance. Failure to pay by one heir can hinder the process or lead to an unequal distribution of assets later on.

Conflicts and Solutions in Inventory

  Although the rights and duties of heirs are clearly defined, conflicts commonly arise during probate. Disagreements regarding the division of assets, the choice of executor, or the validity of wills can delay the process and lead to litigation. 

In these situations, heirs have access to mechanisms such as mediation and conciliation, which aim to resolve disputes amicably and quickly.

In extreme cases, the breach of duties or the violation of rights may be brought before the Judiciary, which will decide according to the principles of legality, equity, and proportionality. The involvement of lawyers specializing in Family and Inheritance Law is essential to ensure that the interests of the heirs are respected and that the process unfolds fairly.

Conclusion

  The probate process is more than a legal formality; it is an essential step to ensure the fair and balanced transfer of assets, respecting the rights and duties of each heir. Although they are beneficiaries of the inheritance, the heirs also have responsibilities that ensure transparency, efficiency, and equity in the procedure.

By understanding and fulfilling their rights and duties, heirs contribute to the harmonious resolution of the probate process, avoiding unnecessary litigation and promoting mutual respect among those involved. Finally, it is important to remember that probate is not limited to the division of material assets, but can also involve emotional and relational aspects, making it essential that the process be conducted with ethics, dialogue, and responsibility.

Author: João Marcos de Carvalho Pedra

BIBLIOGRAPHIC REFERENCES

DE CARVALHO, Dimas Messias; DE CARVALHO, Dimas Daniel. Law of Succession: Inventory and Partition. Del Rey, 2012.

DIAS, Maria Berenice. Handbook of Successions. Editora Revista dos Tribunais, 2008.

VIEIRA, Suelly Maria Moreira; TERTO, Luana Machado; DE MORAES SANTOS, Vívia Pereira. Inheritance law and socio-affective child. 2024.