Undivided inheritances continue to generate prolonged impasses in Portugal, especially when there are properties that remain unused, unsold and unshared for years. It is in this context that the Government wants to change the succession rules, with the aim of speeding up processes that today can drag on for a long time.
The Executive approved, in the Council of Ministers, on March 27th, a proposal linked to housing reform and then delivered to Parliament the , entered on April 16th, which aims to authorize the Government to create a special process for the sale of immovable property integrated into an undivided inheritance and to amend the Civil Code and the Code of Civil Procedure.
What changes in practice
According to the official text of the proposal, the initiative foresees the creation of a mechanism that allows requesting the sale, at market value, of one or more properties integrated into an undivided inheritance, even without consensus among all co-owners. The objective assumed by the Government is to unlock assets that have been off the market for years, both in urban environments and in rural areas.
The proposal attributes legitimacy to any heir and to the sharecropper spouse of the author of the succession, and also provides for the intervention of the spouses of married heirs in general community of property only to provide consent in cases provided for in the diploma. The attached pleading also attributes legitimacy to the executor, for the purposes set out in § 4 of article 2.328-B.
Deadlines and procedure
As a general rule, this right can only be exercised two years after the opening of the succession. Even so, if the inventory process has been requested in the meantime, the mechanism can move forward without depending on this deadline, under the terms set out in the proposal.
At the same time, the proposed amendment to article 2.101 of the Civil Code provides that, in the absence of an indivision agreement, any heir may demand the sale of undivided properties in accordance with procedural law. It also provides that the head of the couple must promote the division by agreement or request probate after five years have passed since the opening of the succession or two years after the expiration of the indivision agreement.
Who is protected and what is left out
The proposal also sets limits. The special sale process cannot be used when the inheritance is insolvent or when the law does not grant the heirs the right to share. Furthermore, in certain situations linked to the protection of vulnerable interested parties, the progress of the sale depends on the consent of the Public Prosecutor’s Office and authorization from the Court.
Also excluded from this mechanism are properties that have been donated or bequeathed by the author of the succession, assets under the administration of an executor with sharing powers, properties covered by the preferential allocation provided for in article 2.103-A of the Civil Code without the express consent of the surviving spouse, and assets that are already seized. If there is a seizure of hereditary shares, the process can continue, but with subrogation of the price in place of the alienated asset.
How the sale will be made
When there is disagreement about the value, it will be up to the court to set the basic price based on assessments. The sale must, as a rule, be an electronic auction, although the judge may choose another method if there are justifiable reasons.
The statute also states that the winning bidder has ten days to deposit the entire price. After deducting the procedural costs, the enforcement agent or the clerk must transfer the remainder within 20 days to an account maintained by all heirs and the sharecropper, if any, or to the estate’s own account.
More powers in the succession process
The proposal is not limited to the sale of properties. The text also provides for a reinforcement of the role of the head of the couple and introduces the figure of the executor with powers of sharing, allowing the author of the succession to leave binding instructions on the assets that must form part of the heirs’ inheritance. According to the explanatory memorandum, the intention is to make the settlement, administration and sharing of inheritance simpler and faster.
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