October 31, 2019 - Comments Off on Recent legislative changes to inventory process (Law no. 117/2019 of 13th September)
The inventory process aims to catalogue the assets left by the deceased and split the inherited assets through the heirs or to divide common assets of the spouses due to the end of their marriage.
Currently, and for some years, the inventory process has been a non-judicial process being dealt exclusively by Notaries, with the courts only intervening of very few occasions.
The Law no. 117/2019, which shall enter into force on 1st January 2020, will revoke the current legal regime of the inventory process and creates a new one, where the courts can also deal with these matters, meaning that the inventory process can also become a judicial process and not just a process before the Notary.
In relation to new inventory processes started after 1st January 2020the new regime will give the people directly interested in the division of assets (such as the heirs or the spouses) the possibility of choosing between filing the inventory process in a Notary Office or before the court.
If the interested parties choose the judicial way, the court with jurisdiction to deal with the matter is the one located in the territory of the deceased's habitual residence, or the deceased’s last residence in Portugal, or if the deceased had property in Portugal, on the court where that property is located. If none of these criteria are met, the Lisbon court will have jurisdiction. However, for the cases of divorce/separation, the court with jurisdiction is the one located within the area of residence of the person who filed the inventory process.
For ongoing inventory processes taking place before the Notary, the regime will continue the same regime, with some exceptions. Solely for ongoing cases and starting on 1st January 2020, these exceptions include the possibility of any of the people directly interested in the division of assets requesting that the process be sent to the court with jurisdiction, when:
- The inventory process is stopped for over 6 months, with nothing useful having been done;
- The inventory process has been stayed due to judicial matters for over a year. Irrespective of the reason, any heirs who, solely or together, represent more than 50% of the inheritance may also request that the inventory process be sent to the court with jurisdiction or to any other Portuguese court that most suits the heirs.
For the inventory process to be sent to the court, the heirs/parties have to pay court fees in the amount of € 102,00, but the court can set a higher amount at the end of the inventory process.
There also cases where the only courts can deal with the inventory process, with the main example being:
- When the inventory is part on another judicial case;
- When the inventory is requested by the Public Prosecution Office;
- When one of the heirs cannot be found or cannot participate in an amicable division of assets due to suffering from a de facto permanent incapacity.
Starting from 1st January 2020, when one of the direct interested people in the inventory is a minor, a person of age who needs a legal representative to assist him/her or a person who cannot be found, the Notary will send those processes to the court with jurisdiction, on its own.
As mentioned at the beginning, please be reminded that these legal changes will be only come into force starting 1st January 2020.
In the meantime, the ongoing cases and future inventory cases to be filed before 1st January 2020 will continue to run their course before the Notary.
For further information please contact Rodrigo Noronha Mourão - firstname.lastname@example.org