Inheritance Law in Germany and Brazil
GÖRNE BISSOLI LAW FIRM | BRAZILIAN DESK
We advise and represent you in inheritance matters involving Germany and Brazil—from estate settlement and the enforcement of inheritance and statutory share claims to international estate planning.
Inheritance Law: Our Core Area of Expertise
AN OVERVIEW OF OUR SERVICES
Whether it involves estate settlement, inheritance disputes, or estate planning: We assist you with all matters of inheritance law relating to Germany and Brazil.
Estate Settlement
- ✓ Probate Proceedings in Brazil (Inventário)
- ✓ Certificate of Inheritance Proceedings Under German and Brazilian Law
- ✓ Identification and Preservation of the Estate
- ✓ Inheritance Dispute
- ✓ Estate Settlement
- ✓ Tax Processing
Wills & Estate Planning
- ✓ Drafting International Wills
- ✓ Cross-Border Estate Planning
- ✓ Choice of Law and Applicable Inheritance Law
- ✓ Succession Planning for Real Estate and Foreign Assets
- ✓ Rights to a compulsory share and rights of statutory heirs in both countries
- ✓ Advance Succession and Gifts
Right to a Statutory Share
- ✓ Enforcement of Claims to a Statutory Share
- ✓ Claims for a supplement to the statutory share in the case of gifts
- ✓ Rights to Information and Estate Inventories
- ✓ Appraisal of Real Estate and Estate Assets
- ✓ Defense Against Unjustified Claims for a Statutory Share
- ✓ Out-of-court and in-court representation
Inheritance Tax Law
- ✓ Inheritance Tax in Germany and Brazil
- ✓ Brazilian Inheritance Tax (ITCMD)
- ✓ Tax Liability in Cross-Border Inheritance Cases
- ✓ Avoidance and Reduction of Double Taxation
- ✓ Tax-Optimized Estate and Gift Planning
- ✓ Tax Reporting Requirements and Administrative Procedures
INTERNATIONAL INHERITANCE LAW: GERMANY - BRAZIL
The Unique Aspects of German-Brazilian Inheritance Cases
Inheritance cases involving Germany and Brazil raise complex issues of international private law and procedural law. Even determining which inheritance law applies can present difficulties. Added to this are varying requirements regarding the administration of estates, the recognition of foreign documents, and the tax treatment of cross-border asset transfers.
PRIVATE INTERNATIONAL LAW
Determining which law governs inheritance is one of the key issues in German-Brazilian inheritance cases.
From a German perspective, succession upon death is generally governed, pursuant to Article 21 of the European Succession Regulation (EuErbVO), by the law of the country in which the decedent had his or her habitual residence at the time of death. Under Article 22 of the EuErbVO, the law of the country of which the decedent is a national may be chosen under certain conditions.
By contrast, Brazilian private international law contains its own conflict-of-laws rules. According to Article 10 of the Lei de Introdução às Normas do Direito Brasileiro (LINDB), succession is generally governed by the law of the state in which the decedent last had his or her domicile (domicílio). Special provisions apply, among other things, to the assets of foreign decedents located in Brazil, for the protection of Brazilian spouses and children.
These differing conflict-of-laws rules can give rise to complex issues, particularly with regard to a possible renvoi, the validity of testamentary dispositions, and the status of statutory heirs.
See also the following blog posts on this topic:
The Applicable Inheritance Law
INTERNATIONAL PROCEDURAL LAW
Probate Proceedings in Two or More Countries
The law applicable to succession must be distinguished from the question of which courts and authorities have jurisdiction over the administration of the estate.
In Germany, a certificate of inheritance may be required to prove one’s status as an heir. In Brazil, the settlement of an estate typically takes place as part of a process known as an “Inventário.” This procedure is primarily intended to determine the estate’s assets, account for the estate’s liabilities, and subsequently distribute the assets.
Depending on the circumstances and legal requirements, the Brazilian “inventário” may be conducted in court or out of court before a notary.
If estate assets are located in both countries, separate proceedings may be necessary. In such cases, the decisions, certificates of inheritance, and powers of attorney must be coordinated and, if necessary, prepared for use in the other country.
See also the following blog posts on this topic:
Brazilian Probate Proceedings Despite a Certificate of Inheritance?
ESTATE SETTLEMENT ABROAD
Real estate and assets in both countries
Practical difficulties often arise when the estate includes real estate, bank accounts, or business interests in Germany and Brazil.
The determination of heir status does not necessarily mean that all assets can be transferred directly to the heirs. In particular, with regard to Brazilian real estate, the applicable requirements under probate law and land registry law must be taken into account.
Different types of documentation and approval procedures may also be required for bank accounts. In addition, there are issues related to estate administration, the sale of assets, and disputes among multiple heirs.
A coordinated approach is therefore crucial to minimizing conflicting proofs of inheritance, unnecessary procedural steps, and delays in the settlement of the estate.
INTERNATIONAL TAX LAW
Inheritance Tax in Germany and Brazil
In addition to issues of inheritance law, the tax implications of an inheritance must always be taken into account.
In Germany, inheritance tax liability depends primarily on the personal circumstances of the decedent and the beneficiary, as well as on the nature and location of the assets acquired. Under certain conditions, assets located abroad may also be subject to German inheritance tax.
In Brazil, inheritance tax—known as the Imposto sobre Transmissão Causa Mortis e Doação (ITCMD)—is levied by the states . The rules vary depending on the state and the specific circumstances.
If assets are subject to taxation in both countries, the question of possible double taxation arises. A credit for foreign inheritance tax under § 21 of the German Inheritance Tax Act (ErbStG) is only possible if the statutory requirements are met and is not available in every case.
It is therefore crucial to assess the tax implications early on, both when settling an estate and when planning for the future transfer of assets.
See also the following blog posts on this topic:
LOCAL SPECIALISTS
Your Contacts for Inheritance Law
Cross-border inheritance cases require in-depth knowledge of both legal systems. At the Brazilian Desk, German and Brazilian attorneys work closely together to handle inheritance matters in both countries in a coordinated manner.
Marek Görne Bissoli, Attorney at Law
Attorney · Certified Specialist in Inheritance Law
Advice and representation in German and international inheritance and tax law, as well as coordination of cross-border estate matters.
Dr. Laís Santos Schayder
Attorney · OAB/ES 31,272
Advice and representation in Brazilian inheritance law, particularly in probate proceedings and the settlement of Brazilian estate assets.