Brazilian law provides that the rules to be used in the inventory and sharing of goods will be those arising from the domicile of the deceased person.
However, when the deceased has assets abroad, there are some provisions that must be observed, especially with regard to the payment of taxes, so that the assets are not fully committed to the payment of these values.
In this article we will bring you the main aspects of the patrimonial succession abroad and what measures can be adopted for the best succession planning and, mainly, so that the heirs can carry out the sharing with the least possible burden.
First, the inheritance succession will depend on the structure of the asset to be transferred.
However, the general rule is: the inventory must be opened in Brazil, if the person whose domicile is in Brazil and the rules applied will be from the country referred to.
After the completion of the inventory process in Brazil, the process must be translated through a sworn translator and, from there, the inventory will be opened in the country where the goods are located, which will be dictated from the inventory process in Brazil.
After this stage, the assets are transferred and, thus, the equity succession process is finalized.
Although in the description the process may seem simple, such processes can take years, thanks to the slowness of the Brazilian judiciary and also the issues arising from the country where the assets are located.
Such delay can generate damage to the heirs, since the assets tend to be devalued, depending on their origin. That is why it is extremely important that succession planning be carried out in advance, since there are investments, such as the creation of a family holding company, which allow the heirs to have access to the patrimony without having to complete the inventory.
It is noteworthy that, even if the person who is a citizen has a residence abroad, but owns goods in Brazil, with regard to the goods referred to, these must be inventoried here in the country.
Double taxation is one of the biggest problems in the inventory of goods abroad. Although article 155 of the Federal Constitution prohibits the collection of ITCMD in assets located abroad, Brazilian jurisprudence does not have a pacified understanding of the possibility of charging the tax on assets located in other countries.
Thus, in the case of the transfer of assets located abroad, the heirs must bear the taxes collected here in Brazil, the fees resulting from the judicial process, in addition to the legal fees.
In the country where the assets are located, the parties must pay attention to the rules of the country in question, where, in general, similar to Brazil, the States usually collect taxes and fees for the transmission, not forgetting the fees of lawyers qualified to represent the heirs in the process from abroad.
In view of the initial issues for external succession, it is necessary to present the main steps to be taken for complete succession abroad.
The first of these is the gathering of the main documents that list which assets are located abroad. In the case of companies, the social contract is one of the main documents to be presented.
An important aspect is how much to adjust the social contract that must be made in life, in order to avoid that there is a blocking of the company’s accounts after the death of the owner, so that the only way of moving the accounts is made after the inventory. In the writing of the contract, this question must be well prepared, in order to avoid any problems later.
Another essential step to be taken is sending a death certificate to the tax authorities of the country where the assets are located. The sending of this document will depend on the country in which the goods are located. In some cases, in addition to the translated death certificate, it is necessary to send the country tax returns for the property.
However, if the assets are located in countries where taxation is favorable to investments, such as the Bahamas and Cayman Islands, for example, it is not required to send the document that proves the death, simply by sending the documents translated from the process of inventory made in Brazil.
Based on a succession plan made by an expert, it is possible to reduce the payment of transmission taxes, court fees and attorney fees.
The establishment of a family holding company abroad is one of the most common ways to skip this stage. The individual’s assets can be invested in this model of company, in order to expand profits from the institution in another country, without compromising the majority of the values in sharing.
Assistance of a specialist lawyer is essential in this step!