Registration of certificate of inheritance

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1. To what extent could the Certificate be registered in your Land Registry?

a) Is this Certificate enough for the registration of ownership (or other rights in rem) in the name of the heirs (or legatees)?

The Certificate could be registered in Portuguese Land Registry. Depending on its content, this document could allow the inscription of the property, in the LR, in favor of the inheritance (Special optional inscription in favor of all the heirs, regarding their succession rights without a specific transfer of a particular right to each or some of them).

Although there is not enough legal doctrine about the Certificate of Inheritance, we believe this document does not have the legal requirements to allow a registration of ownership (or other rights in rem) in the name of the heirs. The partition, by a deed or equivalent document, will always be required. This document must have the statement of will of the heirs about the partition of the assets that integrate the inheritance and this statement seems to be absent of the Certificate.

However, the certificate can allow an inscription of ownership in the LR in some situations:

  • When there is just one heir (no partition is needed).
  • If there are no legal heirs, and the inheritance is entirely distributed to legatees in bequests.

b) Otherwise, which other additional documents or complementary requirements would be needed?

In any case, either for the inscription in favor of the inheritance or of the ownership, it will be needed the documents that prove the fulfillment of tax obligations.

As mentioned above, for the ownership inscription a partition act shall be needed.

2. In particular: for the purposes of registration, if the interested parties have complied with a Certificate of Inheritance adequately, will sharing out or distribution of estate deeds be also necessary?

As answered in the previous question, we believe this document does not have the legal requirements to allow a registration of ownership (or other rights in rem) in the name of the heirs. The partition, by a deed or equivalent document, will always be required. This document must have the statement of will of the heirs about the division of the assets that integrate the inheritance and this statement seems to be absent of the Certificate.

However, the certificate can allow an inscription of ownership in the LR in some situations:

  • When there is just one heir (no partition is needed).
  • If there are no legal heirs, and the inheritance is entirely distributed to legatees in bequests.

3. In the event that the Certificate cannot be used for purposes of registration at all in your LR system, please let’s know the legal reasons.

According to our legal system, the partition implies a statement of will of the heirs about the division of the assets that integrate the inheritance and this statement seems to be absent of the Certificate.

4. May the Certificate be rejected by your registration authorities in the event of inadequate completion, mistakes or inaccuracies?

The certificate can be refuse by the Registrar in the event of inadequate completion, mistakes or inaccuracies, because Land Registrars carry out a legal assessment of the documents or applications submitted.

In accordance with Article 67 of the Land Registry Code the feasibility of the application must be assessed in light of applicable legal provisions, the documents submitted and the previous registries, verifying in particular the identity of the property, the legitimacy of parts, the formal validity of titles and validity of statements contained therein.

According to the Regulation (UE) No 650/2012 in order to avoid duplication of documents, the registration authorities should  accept such documents drawn up in another Member State by the competent authorities whose circulation is provided for by this Regulation

5. For the certificate to be effective for the distribution of the estate and its registration, should this document be issued by national notaries or other practitioners or could it be issued by foreign notaries?

When the certificate shall be considered to be enough to grant a registry, it can be issued either by national or foreign notaries or other authorized entities. Portuguese LR allows the registry of foreign documents if they met the legal requirements when Portuguese law is applicable (eg. Lex Rei Sitae Cases).