How to make a will: what are the types, how much it costs and how to respect the heirs' forced share?

Many people think a will is “something out of a soap opera” or only for the very wealthy. It is not. A will is a simple and accessible tool to organize your own succession — to decide, during your lifetime and with clarity, what happens to your assets, to avoid quarrels among heirs and to benefit those the law alone would not benefit (a friend, an institution, a stepchild).

But there are rules — and breaking them can invalidate the document or part of it. In this guide, you will understand how to make a will: the types that exist, what the forced share is (the most important limit), who can make a will, how much it costs, how to register it and when it is worthwhile.

What is a will and what is it for?

A will is the act by which a person with legal capacity disposes of the fate of their assets for after death (art. 1.857 of the Brazilian Civil Code). It may also address non-property matters — acknowledging a child, appointing a guardian for minor children, giving instructions about the funeral. It is a strictly personal act (only the testator can make it) and revocable at any time (art. 1.858): you may change or cancel it while you live.

What is it for, in practice? To organize the succession according to your wishes, within the limits of the law. A will is optional: without one, the assets are divided under the rules of intestate succession (the order the law defines). With one, you gain a voice over the part of the estate you may dispose of.

What are the types of will?

The Brazilian Civil Code provides for three ordinary forms of will:

• Public (art. 1.864): written by the notary in the notarial book, in accordance with the wishes declared by the testator, and read aloud before two witnesses. It is the most secure and is already on record at the notary's office — hard to challenge and hard to lose.

• Sealed or secret (art. 1.868): written by the testator (or by someone at their request) and signed by the testator; it is handed over sealed to the notary, who approves it before two witnesses, without knowing the content. It preserves confidentiality, but depends on safekeeping and is at risk if the seal is broken.

• Private (art. 1.876): handwritten or typed by the testator and read before three witnesses, who sign it. It is the cheapest (it does not require a notary at the time), but the least secure: it needs judicial confirmation after death (art. 1.877) and carries a greater risk of loss or challenge.

There are also special forms (maritime, aeronautical and military — arts. 1.886 to 1.896), rarely used, for exceptional circumstances. For most people, the choice is among the three ordinary types — and the public will is usually the most recommended for its security.

Who can make a will?

Persons over 16 years of age who have full discernment at the time of the act may make a will (art. 1.860). Incapacity that arises afterward does not invalidate a will already made, and the will of an incapable person is not validated merely because they later regained capacity (art. 1.861) — what matters is the moment of drafting.

Important: the witnesses and the notary cannot be beneficiaries of the will (art. 1.801), nor can certain persons connected to them. Disregarding this compromises the provision. For this reason, the choice of witnesses and the form of the act are not details — they are part of the validity of the document.

The forced share: the limit that cannot be ignored

This is the most important point — and the one that invalidates the most wills. If you have forced heirs (descendants, ascendants or spouse — and the domestic partner, treated as equivalent by the Federal Supreme Court), you may freely dispose of only half of your estate: this is the disposable portion. The other half is the forced share (legítima), reserved by law for these heirs (arts. 1.845 and 1.846 of the Brazilian Civil Code).

In other words: you cannot, by will, disinherit a child without legal cause, nor give everything to a single person to the detriment of the others' forced share. The forced share cannot be included in the will (art. 1.857, §1). The STJ allows a will to refer to the entire estate, provided that, in practice, it does not reduce the forced heirs' forced share (the understanding of Justice Nancy Andrighi).

There is some good news about form: the STJ has been relaxing formal defects (one witness short, a reading omitted) when the testator's wishes are clear and intact (REsp 1.583.314, 1.677.931, 1.703.376) — because the purpose of the law is to preserve the last wishes, not to overturn them on formalism. Even so, it is best to get it right from the start.

Practical example: Mr. Andrade's will

Mr. Andrade, a widower, has two children and an estate of R$ 1 million. He wants to leave something to a nephew who cared for him and to a charitable institution, but without harming his children. Because he has forced heirs (the children), the forced share is R$ 500,000 (half), which necessarily belongs to them.

The disposable portion — the other R$ 500,000 — is what Mr. Andrade may allocate freely. He makes a public will leaving R$ 300,000 to the nephew and R$ 200,000 to the institution. The children receive, at a minimum, the R$ 500,000 of the forced share; the rest follows the testator's wishes. The result: Mr. Andrade's wishes are respected without breaking the law — and, being a public will, the document is secure and hard to challenge.

The most common (and costly) mistakes

• Disregarding the forced share. Disposing of more than half, when there are forced heirs, leads to a reduction of the provisions.

• Benefiting a witness or the notary. They cannot be beneficiaries — a provision in their favor is invalid.

• Choosing the wrong type. The private will is cheap, but fragile; for most, the public will gives much more security.

• Doing it alone, without guidance. Poorly drafted provisions, prohibited conditions or defects of form can invalidate the will.

• Telling no one. A private will that no one finds is as if it did not exist — register it and make it known.

• Forgetting to update it. Because it is revocable, the will should be reviewed after major life changes (marriage, children, new assets).

Checklist: before making your will

• Identify your estate and your forced heirs.

• Calculate the forced share (half) and the disposable portion (the other half).

• Decide what and to whom to allocate within the disposable portion.

• Choose the type of will (the public will is usually the most secure).

• Select reliable witnesses who are not beneficiaries.

• Register the will and inform trusted persons of its existence.

• Combine the will with the rest of your estate planning, with the support of a lawyer.

Frequently asked questions about how to make a will

What is a will and what is it for?

It is the act by which a person with legal capacity disposes of the fate of their assets (and of non-property matters, such as the acknowledgment of a child) for after their death (art. 1.857 of the Brazilian Civil Code). It serves to organize the succession according to the testator's wishes, within the limits of the law — in particular, respecting the forced share of the forced heirs. A will is optional: without one, the assets are divided under the rules of intestate succession.

What are the types of will?

The Brazilian Civil Code provides for three ordinary forms: the public will (written by the notary at the notary's office and read before two witnesses — the most secure, and already on record); the sealed or secret will (written by the testator, handed over sealed to the notary, who approves it before two witnesses — preserves confidentiality); and the private will (written or typed by the testator and read before three witnesses — cheaper, but less secure and requiring judicial confirmation afterward). There are also special forms (maritime, aeronautical and military), rarely used.

How much of my estate can I leave by will?

If you have forced heirs (descendants, ascendants or spouse — and the domestic partner, treated as equivalent by the Federal Supreme Court), you may freely dispose of only half of the estate: the so-called disposable portion. The other half is the forced share, reserved by law for these heirs (arts. 1.845 and 1.846 of the Brazilian Civil Code). If you have no forced heirs, you may dispose of all the assets. The STJ allows a will to refer to the entire estate, provided that, in practice, it does not reduce the forced share of the forced heirs.

How much does it cost to make a will?

It depends on the type. The public and the sealed will are made at the notary's office, and the cost follows the state's schedule of fees — generally something between R$ 600 and R$ 2,500 (an approximate amount, which varies). The private will, because it does not require a notary at the time of drafting, tends to be cheaper, but it is less secure and will depend on judicial confirmation afterward. People recognized as unable to pay may request that the act be free of charge.

Where do I register a will in São Paulo?

The public will is made and kept on file at a notary's office. The sealed will is approved and sealed by the notary. The private will does not require registration at the time of drafting, but it is highly advisable to make it secure and to inform trusted persons of its existence and where it is kept. In São Paulo, the existence of wills can be located through the Notarial Center for Shared Electronic Services (CENSEC), searched after the death — which helps prevent a will from being lost.

Do I need a lawyer to make a will?

It is not required by law for the drafting, but it is highly advisable. A poorly drafted will may be partially or wholly invalid — for infringing the forced share, for a defect of form or for prohibited provisions. The lawyer ensures that the testator's wishes are expressed in a valid and effective way, respecting the legal limits, and helps to choose the most suitable type of will and to combine it with other planning tools, such as gifts or a family holding company.

Deciding during life is the greatest gift you can leave

Making a will is not about thinking of death — it is about caring for those who remain. It is deciding, calmly and clearly, what would otherwise be settled in mourning and, not rarely, in conflict. A well-made will prevents quarrels, protects those you want to protect and gives peace of mind to everyone.

The secret lies in respecting the law (especially the forced share) and choosing the right form. Done this way, a will is one of the simplest and most effective tools of estate planning — and it can be combined with gifts and a family holding company for an even better result.

At Falchet e Marques Sociedade de Advogados, a firm in São Paulo (Av. Paulista), we advise on the drafting of wills and on estate planning as a whole — defining the disposable portion, choosing the appropriate type and ensuring that your wishes are valid and effective. If you want to organize your succession, it is worth doing so with legal certainty.

Talk to our team on WhatsApp: +55 11 95901-1854 — and organize the allocation of your estate with security.