Inheriting an Estate in Portugal From Australia

Inheriting in Portugal from Australia usually means a declaration of heirs (habilitação de herdeiros), a stamp duty return, and a power of attorney so someone in Portugal can act. The Portuguese consulate in Sydney can draw up that power of attorney, or an Australian notary can, followed by a DFAT apostille and a Portuguese translation.

Key takeaways

• The estate is managed by the cabeça-de-casal, usually the surviving spouse, until it is divided.
• The heirs are formally identified in a habilitação de herdeiros, made at a Balcão das Heranças in a Portuguese registry office or at a notary's office in Portugal.
• Where the deceased left assets in Portugal, the death and the assets must be reported to the tax authority by the end of the third month after the month of death.
• Renouncing an inheritance (repúdio) is irrevocable and needs a public deed or authenticated document if the estate includes property.
• A power of attorney can be made at the Consulate-General in Sydney, or before an Australian notary with a DFAT apostille and a Portuguese translation.

Who manages a Portuguese estate?

Portugal's registry authority, the IRN, explains that the cabeça-de-casal administers the estate until it is settled and divided. The role falls, in this order, on:

• the surviving spouse, if an heir or entitled to half of the couple's shared property;
• failing them, the executor named in a will;
• failing an executor, the closest relative who is a legal heir;
• failing those, one of the heirs named in a will.

Among several heirs of the same degree, the role goes to the one who had lived with the deceased for at least a year at the death, and otherwise to the oldest. The IRN adds that the interested parties can all agree on who takes the role, which helps when the person first in line lives in Australia.

What is a habilitação de herdeiros?

The habilitação de herdeiros is the formal declaration of who the heirs are. Portuguese banks, registries and the tax office rely on it. The IRN says it can be done at a Balcão das Heranças, the inheritance desk found in every civil registry office and some land and commercial registry offices, and it can also be done by deed at a notary's office in Portugal. The desk can also register the estate's property in the heirs' names and handle the division (partilha), at any office that has one, wherever the property is.

The procedure can be started by the cabeça-de-casal, their legal representative, or their attorney (mandatário). That last option is how most families in Australia deal with it: a relative or lawyer in Portugal acts under a power of attorney.

Which documents does the registry office need?

According to the IRN, to book the habilitação the cabeça-de-casal presents:

• the identification of every heir, including name, place of birth, marital status and residence;
• each heir's Portuguese tax number (NIF);
• a certificate of any will, with the death already noted on it, from the notary's office where the will was made;
• a list of the estate's assets, if the heirs want the property registered in all their names.

The IRN notes that where the death, the marriage or the heirs' births are already in the Portuguese civil registry, the office checks its own database, so those certificates need not be presented. An heir born in Australia whose birth was never registered in Portugal is a different case, so ask the office or your Portuguese lawyer which Australian certificates they need, and in what form.

What is the tax office deadline?

The tax authority's leaflet on stamp duty on death explains that a return, the Modelo 1 do Imposto do Selo, is compulsory when someone dies leaving assets located in Portugal; if they left none, no return is needed. It is filed by the cabeça-de-casal, and it is due by the end of the third month after the month of death. The leaflet says the deadline cannot be extended, except that the head of the tax office may allow up to 60 days more for a justified reason.

Before filing, the estate needs its own tax number, the NIF de herança indivisa. The leaflet explains that a non-resident cabeça-de-casal can act through their fiscal representative, who applies through the tax portal's e-balcão with copies of the identity documents of the cabeça-de-casal, the deceased and all heirs, and the death certificate.

The IRN adds that a Balcão das Heranças procedure normally includes reporting the death and the assets to the tax authority for you. If the procedure starts after the deadline, the registry office tells the tax authority, which applies the fines due. So a family in Australia should start early, even if the division of the estate comes later.

Can you renounce a Portuguese inheritance?

Yes. The official gazette, the Diário da República, explains in its legal glossary that Portuguese law requires an heir to accept an inheritance before acquiring anything, and an heir who does not want it must renounce it (repúdio). Its key points:

• Form. A renunciation follows the form for transferring the inheritance: a public deed or an authenticated private document if the estate includes assets such as real property, and otherwise a written document.
• No conditions. You cannot renounce only if the debts turn out larger than the assets.
• All or nothing. As a rule, you cannot accept part and renounce the rest, with limited exceptions.
• Final. A renunciation is irrevocable, and can be annulled only for fraud or duress, not for mistake.
• Through a representative. It can be made through a legal representative, for a minor, or through an attorney.

The glossary adds that an heir has 10 years to decide whether to accept or renounce, but the other heirs can ask a court to call on them to decide, and an heir who stays silent is then presumed to accept. Because the form depends on what the estate holds, ask the Portuguese notary or lawyer to draft the document before you sign anything.

How do you sign a power of attorney from Australia?

The Portuguese Consulate-General in Sydney's notarial page describes two routes, and which one fits depends mostly on language.

1. At the consulate. Email the draft, preferably in Word, with your Cartão de Cidadão details, the details of the person you are appointing, and both tax numbers. When it is ready, you are contacted to pay, and you sign in person at the Consulate-General. The consulate says preparation takes some working days whatever the urgency, so plan ahead.
2. If a signatory does not speak Portuguese, they must bring an interpreter to the reading at the consulate.
3. If no signatory speaks Portuguese, the consulate says the power of attorney should be made at an Australian notary's office, then given an apostille by DFAT, and translated into Portuguese.

The consulate adds that a power of attorney that needs notarial intervention must be made by public instrument, at a consulate or a notary's office. It also offers signature recognition, in person, on a document signed at the consulate, with a Portuguese ID or, for a foreigner, a passport. The Portuguese side, as the receiving authority, decides what it needs, so ask your lawyer or the notary in Portugal which route suits before you book. Our guide to signing a power of attorney for use overseas explains the Australian notary's part.

Which Australian documents might Portugal ask for?

Portugal is a member of the Hague Apostille Convention; check the HCCH status table on the day. In Australia, only DFAT issues apostilles. The consulate's own pages show the usual pattern for Australian documents going to Portugal: an apostille, then a translation, often by a NAATI translator whose signature the consulate recognises.

Document	Who prepares it	Usual form
Power of attorney	Consulate-General, or an Australian notary	Consulate: signed in person. Notary: DFAT apostille and Portuguese translation
Renunciation (repúdio)	Drafted by the Portuguese notary or lawyer	Public deed or authenticated document if there is property
Australian death certificate	State Registry of Births, Deaths and Marriages	Apostille and translation, if the Portuguese side asks
Australian birth or marriage certificate	State Registry	Needed only if not already in the Portuguese civil registry
Portuguese certificates	Consulate-General, if registered and computerised	Translated into English for Australian use
Tax number (NIF)	Portuguese tax authority	Needed for every heir

Our guide to documents for Portugal covers apostilles in more detail, and our NAATI translation service can provide the Portuguese translation.

An illustration

This is an illustration, not a real case. A widow in Wollongong inherits her husband's half of a house near Braga. His sister in Portugal agrees to act. Because the widow does not speak Portuguese, she signs a power of attorney before an Australian notary, DFAT adds the apostille, and a NAATI translator prepares the Portuguese version. The sister then attends a Balcão das Heranças, which carries out the habilitação de herdeiros and reports the death and the assets to the tax authority.

Common mistakes to avoid

• Waiting to start until after the end of the third month, when fines can follow.
• Signing a renunciation in the wrong form where the estate includes property.
• Renouncing to avoid a debt you are unsure of, when renouncing is final and cannot be conditional.
• Booking the consulate when no signatory speaks Portuguese.
• Forgetting the heirs' tax numbers, which the registry office asks for.
• Sending an English power of attorney without its Portuguese translation.

In short

Inheriting in Portugal from Australia runs through the cabeça-de-casal, a habilitação de herdeiros at a Balcão das Heranças or a Portuguese notary, and a tax return due by the end of the third month after the month of death. Most families appoint someone in Portugal: sign the power of attorney at the Consulate-General in Sydney, or before an Australian notary with a DFAT apostille and a Portuguese translation. Renouncing is final and needs the right form. See our apostille service and our guide to overseas inheritance documents.

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If a Portuguese lawyer or notary has sent you a document to sign, send us what they asked for, and we will explain each step before you book.