I did a Living Will on my own after looking at the files in AFTPT. I printed out the form, filled it out and took it to the my local Saude's notary to register it. It was free and they sent an email and text it was completed about 2 weeks later.
That "living will" is what in the US we call "an advanced medical directive" or a "durable power of attorney for healthcare"..... it is not the kind of will that Nancy is talking about here. It doesn't dictate what happens to your assets upon your death, just what your wishes are if you are physically incapacitated and cannot make your own medical decisions....
This is a sobering topic for those of us who live in Portugal and especially who like to travel to different countries. I know of a situation where a man suffered a terrible traumatic brain injury in a country (Portugal) other than his native country (USA). Although he had legal temporary residency in his new country his family (who frantically flew in from his native country) were informed that his advance medical directive and durable power of attorney done in his native country had no legal recognition in the new country. Thus his wishes to abstain from life-sustaining measures were not observed, and his family was powerless. They consulted an attorney in the new country and by the time the document was translated and acceptable to the new country the window of opportunity to be allowed to die with dignity had passed (and unwanted invasive medical procedures were performed on him, and he faces a future he adamantly did not want). This has caused a lot of concern among many of us. Obviously we are now rushing to do our advanced medical directives (aka living will) but I am not aware of any EU-wide recognition of a standard advanced medical directive and am interested to know if anyone has heard of a solution to this risk? In situations like this, time is of the essence. If, for example, I suffer an injury like his while I'm traveling in Germany, I would want my medical directive in Portugal to be available and honored.
I do know this Living Will is registered in the healthcare system in Portugal. Good point on having a Living Will in case you travel outside the country (like your example). I'd be interested to learn more about this.
Good and timely article. My condolences to you and your friend. My first husband died in the same manner. Tell your friend that WidowNet on Facebook is a great resource.
I have been told that unless you stipulate otherwise, you will be buried in a Catholic cemetery and are expected to pay monthly for that burial space. Monthly payments for infinity?
Instead, I opted to donate my body to the University of Porto’s medical school. They do whatever research/instruction (I’m not sure that I’m all that interesting), and then they pay for my cremation when I’m done.
Thank you for writing about this important topic and I hope people will share it far and wide with their friends. I don't think many Americans fully understand, or are even aware of, the difference in inheritance laws when they move here or appreciate what a financial disaster they could cause for the surviving spouse.
It is especially important for those of us who don't have children or living parents or who aren't on amicable terms with their family. The realization that my husband's half brother, who we haven't seen in over 40 yrs, would suddenly be in control of a large portion of our assets if my husband died before me made this a top priority for us!
We just got ours done at the notary in our neighborhood in Cascais. 500 total for the attorney there and to have it notarized.
We have an acquaintance here in PT whose husband died suddenly after living there three months. Their joint bank account was frozen here it PT so it made it difficult to pay bills. She had to take a trip back to Portland to have her son's sign over their "share" of the estate. A nightmare on top of grief.
Thank you for this post! Very helpful and timely for us. We are headed to the US this month to do exactly what you were talking about, updating our US wills and trusts (our original wills were done in a state where we no longer have an address). Then, in July, we see our Portuguese attorney, who has already begun the process, but can't complete it until she has our updated wills and trust documents in hand. Complex and a bit costly, but definitely worth it!
I'm working with an attorney that specializes in International Wills now that's highly recommended in AFTPT but she didn't know about taxes outside of direct heirs (children and parents).
My husband and I don't have children or living parents, therefore, anyone on my PT will receiving my inheritance will have a 10% Stamp Duty/inheritance to pay before they aquire my home, etc in PT.
If I decided to put in my PT Will to only apply the USA Will and procedures, do they still have to pay the 10%?
Anyone know? I may have to talk to a USA attorney that specializes in International Will.
We have been grappling with this same issue for months, since we bought our home and began renovations.
We consulted both a highly regarded attorney and a recommended notary. Both confirmed that in order for the US will or US regulations to be followed you must have a PT will. However all that is required is a notary, and two Portuguese speaking, unrelated witnesses. The notary told us that their fees are regulated. It was less than 400 € for his services. Not including living will and power of attorney which were each about €150.
The attorney had 2 plans, one that included executorship when each of us passed, the other which did not. The “basic” was almost €1900. They provides and pay the witnesses. I asked her what was different in her procedures and she explained…nothing. Using the attorney simply meant working with a trusted person.
We did our US wills almost 20 years ago when our son was a minor. Most of the documents are seriously outdated. We consulted an attorney in the US who specializes is complex estates( which we do not have). She told us we don’t have to update our will and if we don’t have property in the US, we don’t even need a will. Just to make sure our investment account has the beneficiaries updated.
Those large gaps in cost and advise have kept us from moving forward. Who is the best choice and what is the best method? If the attorney was €300, like Greg’s, I think we’d have moved forward already. As with many things, there are always a range of opinions and prices. What I know is: we NEED to have a Portuguese will!!
Hmmm. we just updated our wills in the US. A Portuguese attorney recommended by our accountant stated that there are three options: 1. Your Portuguese will can be specified as governing your estate worldwide; 2. You can have two wills, one Portuguese governing your estate in Portugal and one American (presuming US origins here) governing your American estate; or 3. Your American will can be specified as governing your Portuguese estate by including legal language specifying as much: “
“In accordance with the European Union Regulation (UE) number 650/2012 of the European Parliament and Council of 4th July 2012, chooses the law of his nationality, namely American Law, State of XXX to govern his succession, as well as the administration and distribution of all the assets which form part of his said estate to the exclusion of any other law.”
In the event of option 2., both wills (American and Portuguese) must also have a clause to choose the applicable law under the EU regulation.
In addition, nothing can be done until after the death of the person or persons in question.
Because A. Wills signed abroad do not need to be registered in Portugal, actually this is not even possible.
B. After death, either the Executor or any of the beneficiaries of the Will must start the inheritance process in Portugal. A certified copy of the Will duly legalised either by the Portuguese Consulate or with an apostille under the Hague Convention, together with a translation into Portuguese (translation certified in accordance with the Portuguese Law) must be submitted to the Portuguese authorities. These certified copies and translations can only be issued after the death. At that point the attorney recommends that the executor engage a Portuguese lawyer to handle the estate formalities in Portugal.
So, as usual, the advice regarding Portuguese laws is multiple and contradictory.
This is exactly the same information we were given by an attorney and a notary and went with the notary. The notary met with us to find out how we wanted our PT assets handled, wrote the wills (one for each of us), emailed them to us for preview and then we signed with witnesses in her office. Very easy, professional and cost efficient. When we met with the notary initially, she said, "Of course an attorney will do this for you but in Portugal, this is the job of a notary." We have a simple estate so I can't comment on anything more complicated.
We recently did our Portuguese wills. Our attorney suggested that we name a single beneficiary in our Portuguese will as each beneficiary must have a NIF, which is an administrative hoop to jump through. We have an agreement with the executor of our US wills (my brother) that as the beneficiary of our Portuguese will he will distribute the assets as designated in our US wills. He’s an Eagle Scout, with two sons who are also Eagle Scouts. I made him promise on their oath as a Boy Scout that he would honor our wishes! LOL.
Also, we did our medical directives by filling in the form, having it notarized, and submitting it to the RENTEV office. The form is available on the eportugal.gov.pt website. If you mail the completed form to RENTEV it must be notarized. If you deliver it in person it does not have to be notarized….according to the RENTEV representative who accepted our completed forms.
Great reminder about how important these things are. Years ago, one half of an unmarried gay couple died and the deceased spouse's family swooped in and took everything.
Been dealing with this for two years, ten months and counting. My uncle, who passed, was gay and despite writing a Will ten months before he passed our family have tried everything and more to change it. Frightening experience. Happy to chat to you about all I am learning at a costly price!
Thanks, Tanya. This happened to our friends years and years ago. And we've got our will all set up, plus supportive families that would never try anything so despicable.
Sorry Michael I meant to write this just as a comment to Nancy and Denise but I see I responded to you. Pleased you have your affairs in order though. I think I'm still in shock
Another great and informative article, Nancy. Alan and I were just talking about this issue, then your post popped up! As a result, we just made an appointment with our Portuguese attorney to make sure our house here is covered.
We were advised to open individual accounts, and that we could transfer the assets from the joint account to individual accounts before advising the bank of the death of a spouse. A work-around to avoid losing access to cash at a trying time.
Keep in mind the bank does not know until you tell them and our friend had a week or more of paperwork and notifications before the bank. But we have heard others have done this.
1. US Government pensions paid to a US citizen in PT become taxable under the Treaty when that person becomes a citizen. NHR survives.
2. The forced heirship becomes much more complex for second marriages. It then could be surviving spouse + children from the first marriage. Play out that scenario!
3. Joint PT bank accounts are frozen on the death of one holder. Millennium has told me they divide the account and free that portion of the assets to the other holder. The balance will take a long time to be made available. It is essential (not just in PT) that the surviving spouse and executor have access to ready funds somewhere to front the costs of dealing with everything.
4. Registering the marriage makes it a lot easier to prove going forward since you can get a copy from the Loja.
5. All in, it cost us 3,000€ for these wills. Fresh PT is putting a toe in this water and is quoting much less. The lawyers and notaries I spoke to about this were generally unfamiliar with Brussels IV.
Regarding forced heirs you are correct…can be very difficult. Our friend banks with Caixa and while they did not Freeze anything they did send a check for 25% of the amount in the account to the son. Rationale is surviving spouse has his share of account 50%+half of the other 50%, ergo 25%…and as there was only one child, he got 50% of the deceased half.
I did a Living Will on my own after looking at the files in AFTPT. I printed out the form, filled it out and took it to the my local Saude's notary to register it. It was free and they sent an email and text it was completed about 2 weeks later.
That "living will" is what in the US we call "an advanced medical directive" or a "durable power of attorney for healthcare"..... it is not the kind of will that Nancy is talking about here. It doesn't dictate what happens to your assets upon your death, just what your wishes are if you are physically incapacitated and cannot make your own medical decisions....
This is a sobering topic for those of us who live in Portugal and especially who like to travel to different countries. I know of a situation where a man suffered a terrible traumatic brain injury in a country (Portugal) other than his native country (USA). Although he had legal temporary residency in his new country his family (who frantically flew in from his native country) were informed that his advance medical directive and durable power of attorney done in his native country had no legal recognition in the new country. Thus his wishes to abstain from life-sustaining measures were not observed, and his family was powerless. They consulted an attorney in the new country and by the time the document was translated and acceptable to the new country the window of opportunity to be allowed to die with dignity had passed (and unwanted invasive medical procedures were performed on him, and he faces a future he adamantly did not want). This has caused a lot of concern among many of us. Obviously we are now rushing to do our advanced medical directives (aka living will) but I am not aware of any EU-wide recognition of a standard advanced medical directive and am interested to know if anyone has heard of a solution to this risk? In situations like this, time is of the essence. If, for example, I suffer an injury like his while I'm traveling in Germany, I would want my medical directive in Portugal to be available and honored.
I do know this Living Will is registered in the healthcare system in Portugal. Good point on having a Living Will in case you travel outside the country (like your example). I'd be interested to learn more about this.
Do you mind if I ask, what does AFTPT stand for?
Pardon my ignorance
thanks you in advance
A Facebook group. Americans & Friends in Portugal.
We just got ours done. Cost was €387 for the notary and €300 for the attorney. That also included "living wills"
Good and timely article. My condolences to you and your friend. My first husband died in the same manner. Tell your friend that WidowNet on Facebook is a great resource.
I have been told that unless you stipulate otherwise, you will be buried in a Catholic cemetery and are expected to pay monthly for that burial space. Monthly payments for infinity?
Instead, I opted to donate my body to the University of Porto’s medical school. They do whatever research/instruction (I’m not sure that I’m all that interesting), and then they pay for my cremation when I’m done.
Thank you!
Thank you for writing about this important topic and I hope people will share it far and wide with their friends. I don't think many Americans fully understand, or are even aware of, the difference in inheritance laws when they move here or appreciate what a financial disaster they could cause for the surviving spouse.
It is especially important for those of us who don't have children or living parents or who aren't on amicable terms with their family. The realization that my husband's half brother, who we haven't seen in over 40 yrs, would suddenly be in control of a large portion of our assets if my husband died before me made this a top priority for us!
We just got ours done at the notary in our neighborhood in Cascais. 500 total for the attorney there and to have it notarized.
We have an acquaintance here in PT whose husband died suddenly after living there three months. Their joint bank account was frozen here it PT so it made it difficult to pay bills. She had to take a trip back to Portland to have her son's sign over their "share" of the estate. A nightmare on top of grief.
My PT attorney is including in my Will: "She also states that he wishes to have his body handled after death in the following way: xxxxxx"
Thank you for this post! Very helpful and timely for us. We are headed to the US this month to do exactly what you were talking about, updating our US wills and trusts (our original wills were done in a state where we no longer have an address). Then, in July, we see our Portuguese attorney, who has already begun the process, but can't complete it until she has our updated wills and trust documents in hand. Complex and a bit costly, but definitely worth it!
Very helpful. I must check my position post-Brexit with my wonderful Portuguese lawyer.
I'm working with an attorney that specializes in International Wills now that's highly recommended in AFTPT but she didn't know about taxes outside of direct heirs (children and parents).
My husband and I don't have children or living parents, therefore, anyone on my PT will receiving my inheritance will have a 10% Stamp Duty/inheritance to pay before they aquire my home, etc in PT.
If I decided to put in my PT Will to only apply the USA Will and procedures, do they still have to pay the 10%?
Anyone know? I may have to talk to a USA attorney that specializes in International Will.
We have been grappling with this same issue for months, since we bought our home and began renovations.
We consulted both a highly regarded attorney and a recommended notary. Both confirmed that in order for the US will or US regulations to be followed you must have a PT will. However all that is required is a notary, and two Portuguese speaking, unrelated witnesses. The notary told us that their fees are regulated. It was less than 400 € for his services. Not including living will and power of attorney which were each about €150.
The attorney had 2 plans, one that included executorship when each of us passed, the other which did not. The “basic” was almost €1900. They provides and pay the witnesses. I asked her what was different in her procedures and she explained…nothing. Using the attorney simply meant working with a trusted person.
We did our US wills almost 20 years ago when our son was a minor. Most of the documents are seriously outdated. We consulted an attorney in the US who specializes is complex estates( which we do not have). She told us we don’t have to update our will and if we don’t have property in the US, we don’t even need a will. Just to make sure our investment account has the beneficiaries updated.
Those large gaps in cost and advise have kept us from moving forward. Who is the best choice and what is the best method? If the attorney was €300, like Greg’s, I think we’d have moved forward already. As with many things, there are always a range of opinions and prices. What I know is: we NEED to have a Portuguese will!!
Thanks for bringing up this important issue!
Hmmm. we just updated our wills in the US. A Portuguese attorney recommended by our accountant stated that there are three options: 1. Your Portuguese will can be specified as governing your estate worldwide; 2. You can have two wills, one Portuguese governing your estate in Portugal and one American (presuming US origins here) governing your American estate; or 3. Your American will can be specified as governing your Portuguese estate by including legal language specifying as much: “
“In accordance with the European Union Regulation (UE) number 650/2012 of the European Parliament and Council of 4th July 2012, chooses the law of his nationality, namely American Law, State of XXX to govern his succession, as well as the administration and distribution of all the assets which form part of his said estate to the exclusion of any other law.”
In the event of option 2., both wills (American and Portuguese) must also have a clause to choose the applicable law under the EU regulation.
In addition, nothing can be done until after the death of the person or persons in question.
Because A. Wills signed abroad do not need to be registered in Portugal, actually this is not even possible.
B. After death, either the Executor or any of the beneficiaries of the Will must start the inheritance process in Portugal. A certified copy of the Will duly legalised either by the Portuguese Consulate or with an apostille under the Hague Convention, together with a translation into Portuguese (translation certified in accordance with the Portuguese Law) must be submitted to the Portuguese authorities. These certified copies and translations can only be issued after the death. At that point the attorney recommends that the executor engage a Portuguese lawyer to handle the estate formalities in Portugal.
So, as usual, the advice regarding Portuguese laws is multiple and contradictory.
This is consistent with what I wrote…we are having 2 to make it easier on our US based family.
This is exactly the same information we were given by an attorney and a notary and went with the notary. The notary met with us to find out how we wanted our PT assets handled, wrote the wills (one for each of us), emailed them to us for preview and then we signed with witnesses in her office. Very easy, professional and cost efficient. When we met with the notary initially, she said, "Of course an attorney will do this for you but in Portugal, this is the job of a notary." We have a simple estate so I can't comment on anything more complicated.
We recently did our Portuguese wills. Our attorney suggested that we name a single beneficiary in our Portuguese will as each beneficiary must have a NIF, which is an administrative hoop to jump through. We have an agreement with the executor of our US wills (my brother) that as the beneficiary of our Portuguese will he will distribute the assets as designated in our US wills. He’s an Eagle Scout, with two sons who are also Eagle Scouts. I made him promise on their oath as a Boy Scout that he would honor our wishes! LOL.
Also, we did our medical directives by filling in the form, having it notarized, and submitting it to the RENTEV office. The form is available on the eportugal.gov.pt website. If you mail the completed form to RENTEV it must be notarized. If you deliver it in person it does not have to be notarized….according to the RENTEV representative who accepted our completed forms.
Great information. Thank you.
Great reminder about how important these things are. Years ago, one half of an unmarried gay couple died and the deceased spouse's family swooped in and took everything.
This raises the question of registering our marriage license in PT. I have been told by some to do it but lawyer said it is not necessary.
Been dealing with this for two years, ten months and counting. My uncle, who passed, was gay and despite writing a Will ten months before he passed our family have tried everything and more to change it. Frightening experience. Happy to chat to you about all I am learning at a costly price!
Thanks, Tanya. This happened to our friends years and years ago. And we've got our will all set up, plus supportive families that would never try anything so despicable.
Sorry Michael I meant to write this just as a comment to Nancy and Denise but I see I responded to you. Pleased you have your affairs in order though. I think I'm still in shock
Another great and informative article, Nancy. Alan and I were just talking about this issue, then your post popped up! As a result, we just made an appointment with our Portuguese attorney to make sure our house here is covered.
We were advised to open individual accounts, and that we could transfer the assets from the joint account to individual accounts before advising the bank of the death of a spouse. A work-around to avoid losing access to cash at a trying time.
Keep in mind the bank does not know until you tell them and our friend had a week or more of paperwork and notifications before the bank. But we have heard others have done this.
A much clearer catalog than a lot I've seen.
My understanding, randomly:
1. US Government pensions paid to a US citizen in PT become taxable under the Treaty when that person becomes a citizen. NHR survives.
2. The forced heirship becomes much more complex for second marriages. It then could be surviving spouse + children from the first marriage. Play out that scenario!
3. Joint PT bank accounts are frozen on the death of one holder. Millennium has told me they divide the account and free that portion of the assets to the other holder. The balance will take a long time to be made available. It is essential (not just in PT) that the surviving spouse and executor have access to ready funds somewhere to front the costs of dealing with everything.
4. Registering the marriage makes it a lot easier to prove going forward since you can get a copy from the Loja.
5. All in, it cost us 3,000€ for these wills. Fresh PT is putting a toe in this water and is quoting much less. The lawyers and notaries I spoke to about this were generally unfamiliar with Brussels IV.
Regarding forced heirs you are correct…can be very difficult. Our friend banks with Caixa and while they did not Freeze anything they did send a check for 25% of the amount in the account to the son. Rationale is surviving spouse has his share of account 50%+half of the other 50%, ergo 25%…and as there was only one child, he got 50% of the deceased half.