Back To The Future: The Brand New Inventory Scheme

Author:Mr Paulo von Hafe
Profession:Ana Bruno & Associados Sociedade de Advogados SPRL

Answering a large chorus of protests, led mostly by the Bar Association, the Probation Legal Regime, approved by Law No. 23/2013 of 5 March, which regulates the distribution of inheritance rights and matrimonial property since September 2013 — after several inoperative versions, found its premature end.

Expected to be effective on the first day of 2020, Law No. 117/2019, published on Friday, September 13, restored the principal probate jurisdiction to the Civil Courts, pushing Notaries to a corner marginal position, with little more application than consensual probation.

This huge change also reintroduces the special probation process back to the Civil Code, while maintaining a parallel — and again marginal — notarial probation regime in an autonomous statute, through a legislative technique of doubtful clarity and difficult access to the citizen.

Without any explanatory preamble or memorandum, the new probation regime will regulate the procedure for ending hereditary communion and sharing assets, listing inherited assets and serving as the basis for eventual liquidation of inheritance, where inheritance sharing is not necessary, sharing property as a result of the justification of absence and sharing common property of the couple after legal separation of property, persons and property or divorce.

The probation, in a strategy that has been reinforced by the IMF-European Bank-European Commission troika mandate to reduce Court delays, had moved entirely to the competence of private Notaries. It now goes back to the exclusive responsibility of the Civil Courts in cases where a minor or incompetent intervenes or if an absentee is involved and the Public Prosecutor sees the need for benefit of inventory; when the inventory is dependent on another court case (and therefore and immediately in all cases of contentious divorce) or whenever required by the Public Prosecutor.

Apart from these cases, the Law maintains an apparently optional jurisdiction between Courts and Notaries, but the latter depends at least on the tacit acceptance of all parties, who may however at any time request that the procedure is redistributed to a Judicial Court.

The process begins, as it already did, by the initiative of the head-of-family or any interested party and immediately leads to a first intervention by the Judge, which proceeds to a preliminary assessment of the request. Although this preliminary assessment is similar to what is foreseen in the present notary...

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