When a person dies and leaves assets to be divided, the heirs need to regularize the succession. In some cases, the division is simple and everyone agrees. In others, doubts arise about assets, debts, wills, donations, values, inheritance shares, or the rights of each interested party. It is in this context that it may be necessary to resort to an inventory process.

Knowing how to choose between judicial or notarial probate is important to avoid delays, unnecessary costs, and more prolonged family conflicts. The appropriate route depends on the type of inheritance, the existence of an agreement between heirs, the complexity of the assets, the presence of minors or incapacitated individuals, and the need for court intervention.

The probate process is not just about "dividing assets." It serves to identify heirs, list assets and debts, resolve disagreements, assess assets, determine shares, and formalize the division. Before starting the process, it may be wise to seek legal counsel. Solicitors with experience in inheritances, division of assets and probate proceedings.

What is an inventory process?

The probate process is the means used to list, assess, and divide the assets of an inheritance or, in certain cases, the joint assets of a couple.

In inheritance proceedings, the probate process allows one to determine who the heirs are, what assets were left by the deceased, what debts exist, what rights must be respected, and how the estate should be divided.

It may involve real estate, bank accounts, vehicles, company shares, household contents, financial investments, debts, loans, insurance policies, previous donations, wills, or assets located abroad.

Probate may be necessary when there is no agreement among the heirs, when there are doubts about the composition of the inheritance, or when there are interested parties who require special protection, such as minors or legally incapacitated adults.

When all heirs are in agreement and the situation is simple, it may be possible to carry out an extrajudicial division of assets through a deed or authenticated private document, without the need for a contentious probate process.

Judicial inventory: when does it apply?

The judicial inventory process takes place in court. Since the reform introduced by Law No. 117/2019, The inventory process has once again been regulated in the Code of Civil Procedure, specifically in articles 1082 and following.

This approach is especially relevant when there is a dispute between the interested parties or when the law requires judicial intervention.

A judicial inventory may be necessary, for example, when:

• The heirs cannot reach an agreement on the division of assets.;
• There are disagreements regarding the existence or value of the assets;
• There are questions regarding wills, donations, or inheritance;
• There are interested parties who are minors, adults who are accompanied by an adult, or absent;
• There are conflicts regarding who should act as the head of the household;
• There is opposition to the list of assets;
• It is necessary to decide complex legal issues;
• There is a division of assets as a result of a contested divorce or separation of property.

The court has the power to decide on incidents, consider complaints, order investigations, resolve disputes, and approve the division of assets.

Because it is a more formal process, judicial probate can be more time-consuming, especially when there are many interested parties, assets that are difficult to value, or successive challenges.

Notarial inventory: when can it be used?

The notarial inventory process is handled at a notary's office, in accordance with the specific regulations approved by Law No. 117/2019.

This can be a useful alternative when parties seek out-of-court proceedings and when the case does not require, from the outset, a permanent judicial decision on complex disputes.

In practice, a notarial inventory may be appropriate when there is greater willingness to reach an agreement, when the heirs accept the notary's intervention, and when the matter can be handled with less litigation.

However, a notarized inventory does not mean an absence of rules. There are phases, documents, notifications, claims, asset valuation, preparatory review, partition plan, and decisions that must comply with the law.

Furthermore, certain matters may require referral to court or judicial intervention, depending on the case. Therefore, the choice of the notarial route should be made with an understanding of its advantages and limitations.

Main differences between judicial and notarial probate.

The most obvious difference lies in the entity conducting the process. In judicial probate, the process takes place in court. In notarial probate, it takes place before a notary.

In judicial probate proceedings, decisions are made within the context of a judicial process, with the intervention of a judge. This route may be more appropriate when there is intense conflict, a need for decisions on complex legal issues, or protection of vulnerable parties.

In notarial probate proceedings, the process takes place in a notary's office, which can be more flexible in certain cases. However, the existence of significant litigation may reduce this advantage.

There may also be differences in initial costs, practical procedures, the availability of stakeholders, the method of submitting applications, and coordination with registration procedures.

The best option doesn't just depend on which seems quickest. It depends on understanding if there's an agreement, what assets exist, who the heirs are, if there are any incapacitated individuals, what issues are in dispute, and what kind of intervention will be necessary.

Is inventory always mandatory?

No. Probate is not mandatory in all inheritances.

When the heirs are of legal age, capable, all identified, and there is agreement regarding the composition of the inheritance and the method of distribution, it may be possible to carry out the division through extrajudicial means.

In these cases, the heirs can proceed with the heirship proceedings, payment of stamp duty, tax regularization, deed or authenticated private document of division of assets, and registration of the property.

However, when there is no agreement, when an interested party refuses to cooperate, or when there are doubts that prevent the division of assets, probate may become necessary.

It is also necessary to analyze the existence of a will, lifetime gifts, undivided assets, inheritance debts, blocked bank accounts, or properties that require registration regularization.

The area of inheritances and divisions This can help determine if inventory is essential or if there's a simpler solution.

Who can request probate?

An inventory can be requested by anyone with a direct interest in the division of assets.

Depending on the case, those in this position may include heirs, surviving spouse, legatees, creditors of the estate, or other legally recognized interested parties.

The application must identify the deceased, known interested parties, the family or inheritance relationship, the basis for the request and, whenever possible, the available information about assets and debts.

Correctly identifying the heirs is essential. Errors at this stage can delay notifications, lead to invalidations, or require corrections to the process.

Before proceeding, you should confirm whether there is already proof of heirship, a death certificate, a will, a prenuptial agreement, property certificates, bank documents, and other relevant documents.

The role of the head of the household

The head of the household plays a central role in managing the inheritance until its division.

As a rule, it is their responsibility to list the assets, identify debts, provide information, present documents, and perform acts necessary for the management of the undivided inheritance.

The law establishes an order to determine who performs these functions, but conflicts may arise. For example, an heir may believe that the head of the estate omitted assets, indicated incorrect values, favored certain interested parties, or failed to provide an accounting.

When there are discrepancies, interested parties can contest the list of assets, request clarifications, submit documents, and request the intervention of the competent authority.

The duties of head of household must be carried out with rigor, transparency, and respect for the rights of the other heirs.

Typical stages of the inventory process

Although each process has its own particularities, there are phases that frequently occur.

The inventory process begins with the initial request. Then, the interested parties are identified, and the head of the household is called to provide statements and present a list of assets.

The next phase involves interested parties who can object to the list of assets, challenge values, raise questions about debts, request the inclusion or exclusion of assets, and request further investigations.

When necessary, there may be an appraisal of assets, resolution of incidents, and preparation for the division of assets.

Later, the shares of each interested party are defined, the distribution plan is drawn up and, when applicable, payments, compensations and adjudications are made.

Ultimately, the division of assets allows for the regularization of ownership, particularly through the necessary land, vehicle, or commercial registrations.

Time limits in judicial and notarial probate proceedings.

The timelines for probate depend on the chosen method, the complexity of the inheritance, the number of interested parties, the existence of conflicts, the need for appraisals, and the speed with which documents are submitted.

It is not wise to promise a fixed deadline. A simple probate proceeds relatively quickly. Probate involving multiple properties, conflicting heirs, assets abroad, a will, donations, or claims can take considerably longer.

There are procedural deadlines for performing actions, responding to notifications, filing claims regarding the inventory of assets, challenging values, or appealing decisions. These deadlines must be confirmed on a case-by-case basis and are counted from the date of the relevant notification.

The most common delays are not just in court or at the registry office. Often, they result from a lack of documents, difficulty in locating heirs, a lack of agreement on values, resistance from the head of the household, or the omission of assets.

Therefore, the better prepared the initial documentation is, the greater the likelihood of avoiding unnecessary incidents.

Inventory costs

The costs of probate vary depending on the chosen method, the value of the estate, the number of necessary actions, the existence of appraisals, the registrations to be made, professional fees, and the complexity of the litigation.

In judicial probate proceedings, there may be court fees, charges, and procedural costs, in accordance with the Rules of Procedural Costs.

In notarial probate proceedings, there may be notarial fees, expenses, and charges, in accordance with applicable rules.

In addition to these amounts, costs may arise for certificates, appraisals, registrations, translations, legalizations, travel, bank documents, and legal support.

In certain situations, legal aid may be required if the legal requirements are met. The matter of procedural expenses can be discussed in greater detail in the article on... court costs.

Before starting the process, it is advisable to request a realistic estimate, knowing that conflicts and incidents can increase the final cost.

What are turntables?

Compensation arises when an interested party receives assets of greater value than their share and must compensate the remaining parties.

Imagine an inheritance involving a property that is awarded to one of the heirs. If the value of the property exceeds the share that was due to that heir, that heir may have to pay compensation to the others.

Compensation payments are common when the inheritance includes assets that are difficult to divide physically, such as houses, land, vehicles, or company shares.

The method of payment, the deadline, and the consequences of non-compliance must be carefully regulated.

Many disputes in probate proceedings arise precisely because an heir wants to keep a particular asset but lacks the financial capacity to pay the compensation.

Property valuation

Property valuation may be necessary when interested parties disagree with the indicated values.

This is common with real estate, rural land, family businesses, company shares, household contents, works of art, vehicles, or assets of questionable economic value.

The valuation has a direct impact on the shares, adjustments, and balance of the distribution.

A value that is too low may harm the heirs who do not inherit the property. A value that is too high may hinder the adjudication process or generate impossible-to-pay compensation amounts.

Therefore, the evaluation must be handled in a technical and documented manner, resorting to appropriate means when there is significant disagreement.

Inventory and real estate

When an inheritance includes real estate, the probate process requires special attention.

It is necessary to correctly identify the buildings, gather property certificates, property registration documents, verify cadastral entries, encumbrances, mortgages, liens, usufructs, leases or occupancy situations.

It may also be necessary to determine whether the property was the deceased's own property, jointly owned by the couple, or owned by third parties.

After the division of the inheritance, the properties must be registered in the name of the heirs or interested parties to whom they are awarded.

Failure to register can create future problems, particularly with sales, donations, funding, or new shares.

Inventory after divorce or separation.

Inventory proceedings are not only for inheritances. They may also be necessary to divide jointly owned assets of a couple when there is a divorce or separation and the former spouses cannot reach an agreement.

In these cases, the goal is to separate the assets and define what belongs to each person, according to the marital property regime.

The items in question may include the family home, bank accounts, vehicles, credits, debts, businesses, property renovations, loans, and asset transfers.

The division of assets depends on the applicable marital property regime, such as community of acquired property, community of property, or separation of property. The article discusses this. division of assets in divorce This can help in understanding this connection.

When there is family conflict, support in divorce It may be necessary to coordinate the sharing of parental responsibilities, food, and use of the house.

Documents that may be required

Document preparation is crucial to avoid delays.

May be required:

• death certificate;
• heir qualification;
• will, if one exists;
• Birth and marriage certificates of the interested parties;
• prenuptial agreement, if any;
• property certificates;
• property registration books;
• vehicle documents;
• bank statements;
• Information about accounts, deposits and financial investments;
• debt documents;
• tax returns;
• documents relating to quotas or companies;
• Proof of donations;
• valuations or value propositions;
• Powers of attorney, when representatives exist.

When assets are located abroad, translations, apostilles, legalizations, and analysis of applicable international rules may be necessary.

Common errors in inventory processes

Many inventories are delayed due to avoidable errors.

Among the most common are:

• to start the process without identifying all the heirs;
• omitting assets from the inheritance;
• to indicate unfounded values;
• ignore relevant debts;
• to confuse personal property with community property;
• not verifying the marital property regime;
• Accepting a division without understanding the returns;
• not keeping proof of previous donations;
• letting complaint deadlines pass;
• Signing vague agreements;
• not registering the assets after the division of property.

It is also common to treat emotional conflicts as if they were merely legal matters. In inheritance cases, there are often long-standing family histories, differing expectations, and a lack of communication. A lawyer can help refocus the discussion on rights, documents, and possible solutions.

Quando é que deve consultar um advogado?

You should consult a lawyer when there is disagreement between heirs, regarding real estate, minors, wills, donations, debts, companies, assets abroad, or suspicion of concealed assets.

It is also advisable to seek legal advice before accepting values, awards, settlements or partition agreements.

A lawyer can analyze the composition of the inheritance, verify documents, identify risks, prepare claims, monitor the probate process, and represent the interested party in court or notary's office.

The intervention of Lawyers in Braga This can be important when the division involves real estate, family conflicts, or the need to act within procedural deadlines.

For heirs living abroad, the support of Lawyers in Portugal It can allow for remote monitoring, document analysis, powers of attorney, and representation in acts related to inheritance.

How can CSG Advogados help?

A CSG Solicitors The law firm of Dr. Catarina S. Gomes provides support in judicial and notarial inventories, inheritances, partitions, heir qualifications, and succession disputes.

The process may include an initial analysis of the inheritance, identification of interested parties, collection of documents, preparation of the application, filing of the inventory of assets, assessment of debts, negotiation between heirs, and representation in court or notary's office.

CSG Advogados can also provide support in cases of divorce, division of assets, regularization of real estate, and coordination with land registries.

Each process must be analyzed individually. The choice between judicial inventory, notarial inventory, or extrajudicial division depends on the degree of agreement, the existing assets, the interested parties involved, and the objectives of each client.

Conclusion

Choosing between judicial or notarial probate requires understanding the inheritance, the interested parties, the assets, the debts, and the level of conflict.

Judicial probate may be more appropriate when there is significant litigation, a need for a court decision, or interested parties requiring special protection. Notarial probate may be useful when the situation allows for processing at a notary's office and there is greater availability for agreement.

Timelines and costs vary depending on the complexity of the process. Proper document preparation, accurate asset identification, and meeting deadlines are essential to avoid delays.

General information is not a substitute for individual analysis. If you need to divide an inheritance, resolve disagreements between heirs, or choose between judicial and notarial probate, you can schedule a consultation with CSG Advogados to assess the most appropriate solution for your case.