To Will or not to Will, that is the question

To Will or not to Will, that is the question.

In November we celebrate “Dia de Finados”, not quite, but let’s pretend it is, similar to “Día de los Muertos” in Mexico. This is just a very unimaginative intro to a very common inquiry from foreign people in Portugal. The Portuguese do not have a very strong Will culture, mainly due to our Succession Law, that is never waivered by a Last Will or last wishes instrument.

Not to generalize (evidently everyone, regardless of their nationality, when considering a Will should speak with both a Lawyer and a Notary), but today’s topic is about the benefits or preponderant reasons for a non-national living in Portugal to do a Will.

Foreign nationals living in Portugal for at least five years, will potentially have the law applicable to their succession, the law from the last residency. When one has assets in Portugal, but, primarily, outside of Portugal and would like to choose the law of any other country, being their nationality or, in any other way, a country with which they hold a strong connection with, for instance, majority of assets, preexisting Wills, among others, may not consider it funny to leave Portuguese Law to its own demise.

Portuguese Succession Law states that when one dies your property will be shared among your legal heirs according to the law of your residence (Portugal, as hypothesis), unless you have left a Will stating that it is the law of any other country that applies.

A foreigner can make a Portuguese Will leaving their property to the person/people of their choice, regardless of being legal heirs or not. This Will must contain a declaration that their personal law is governed by the principle of free disposition of assets by testament or the law ruling the chosen country. And from that moment on, one can decide to revert to previous last wishes celebrated in other countries or revert to their living trusts.

The decision to go forward with a Will is never morbid. One should consult a lawyer or a notary to understand if their family circumstance and assets would benefit from drafting a Will or not. Also, if one has different concerns, along with having a Will done, one can predict different last wishes, such as guardianship chain of command, executor(s) of the Will, administrator(s) of assets, what to do with their bodies and/or ashes, and the list goes on…

Wills as public instruments of last wishes pertaining one’s assets are different from DAV (Directiva Antecipada de Vontade) or Living Wills, in which one states their wishes in terms of medical procedures, interventions and life support, among others.

To Will or not to Will, that is up to you. Educated decisions from legal professionals are first and foremost the kick start to having peace of mind.