The mortis causa transfer of real estate located in Portugal may raise doubts and lead to the non-compliance with legally established deadlines and obligations, especially for foreign citizens residing, or not, in Portugal.
This article aims to present, in an objective, rigorous, and necessarily concise manner, the main procedures that must be observed by the heirs after death.
In Portugal, there are two essential steps, one of which is mandatory, that must be ensured by the heirs:
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the notification of the death to the tax authorities, and the settlement of the respective stamp duty due on gratuitous transfers (as is the case of mortis causa transfers): completing this form requires the identification of the deceased and their heirs, as well as the listing of all assets that make up the estate (the well-known inventory of assets, which includes movable and immovable property, bank accounts, securities of any kind, etc.). This notification and settlement must be carried out by the end of the third month following the death, with late submission being subject to fines.
Regarding the tax rate, in principle, the transfer of inheritance shares to legitimate heirs is exempt from stamp duty, but this is not the case for the transfer of legacies or inheritance shares to testamentary heirs. -
the execution of the certificate of heirs (habilitação de herdeiros), carried out exclusively before a notary or registry officer, being the deed or document that confirms (and validates the respective capacity, for all legal and necessary purposes) who the legal and testamentary heirs of the deceased are. The heirs may execute this step personally or through a legal representative, who, with the proper power of attorney, may act on their behalf.
It is also important, in this context, to highlight the following: in principle, the law governing the succession will be the law of the country where the death occurred; however, the deceased may choose, during their lifetime, through a will, for a different law to apply, provided that certain requirements are met.
Determining the applicable law is particularly relevant and must be established prior to completing the aforementioned steps, as it directly affects the determination of who the heirs are, in view of the different legal classifications in each country.
For example, if a UK national, residing in Portugal with his wife and three children, dies in Portugal without having left a will, the law governing the inheritance will be Portuguese law, making the wife and three children all heirs. In the same case, but if, on the other hand, the deceased had made a will during his lifetime choosing his personal law, that of the United Kingdom, to govern his succession, and in that will had left all his assets to his wife, that provision would be valid under UK law, but invalid under Portuguese law, which prohibits the disposition of 2/3 of the estate, which are mandatorily reserved for all legal and legitimate heirs.
In the present case, the certificate of heirs to be prepared in Portugal would have to be supported by the will of the deceased and would mention that the applicable law to the succession is the law of the United Kingdom, further indicating, consequently, who the respective heirs are.
With the above-mentioned documents — namely, the stamp duty declaration for the death, and the certificate of heirs — the heirs may proceed with any registrations required to update the ownership of movable or immovable property, as well as perform most necessary acts following someone’s death, such as contract terminations, bank account operations or closures, among others.
The sale or encumbrance of assets that are part of the estate may only occur after the completion of the two essential steps above, and such transactions also require the agreement and participation of all heirs.
Mandatory Preliminary Checks
Before any legal action regarding the property included in the inheritance — whether it is division, donation, or potential transfer for consideration — the appropriate prior due diligence must be carried out to guarantee and ensure compliance with the legal status and documentation of the property, namely the confirmation that all tax obligations have been fulfilled, that the property is licensed, that it has all necessary documents for the intended acts and for any associated registrations, and that there are no encumbrances or burdens that should be considered and cancelled before its transfer.
These steps are essential to ensure the legal security of the inherited asset and to avoid constraints in later stages.
In short, the inheritance of real estate in Portugal by resident and non-resident citizens requires strict compliance with a set of legal and tax formalities.
At Almeida & Associados, we provide complete and personalized assistance throughout the succession process, ensuring:
• complete and rigorous support throughout the entire succession process, particularly in the analysis, preparation, and submission of the inheritance stamp duty declaration, and in the preparation and processing of the certificate of heirs;
• support with registration acts that may be required, and with the necessary tax regularization with the Tax Authority;
• preparation of all necessary documentation for the future division, sale, or encumbrance of the property.
📩 If you have inherited a property in Portugal, our team will be pleased to provide the necessary support to ensure that all procedures are completed safely, swiftly, and in full legal compliance.
