Making a will in Brazil: types, costs and the heirs' forced share
How to make a will: the three types (public, sealed and private), the forced share and the disposable portion, capacity, costs and registration. A practical, updated guide.
A will lets you arrange during life how your property should pass after death (Brazilian Civil Code articles 1,857 et seq.). The three ordinary forms are public, sealed and private. Where there are forced heirs, half the estate is their forced share and the other half is generally disposable. A will can be revoked under the legal rules, but an acknowledgment of a child contained in it is irrevocable. Careful drafting reduces uncertainty without preventing every dispute.
Many people think a will is “something out of a soap opera” or only for the very wealthy. It is not. It can clarify how the disposable portion should pass and benefit someone not entitled under intestacy rules, such as a friend, an institution or a stepchild. Its usefulness and cost depend on the estate, family relationships and chosen form.
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 an act by someone with testamentary capacity arranging their property after death (article 1,857). It may include legally permitted non-property matters, such as acknowledging a child, appointing a guardian for minor children where the law allows, or expressing funeral wishes. It is strictly personal and revocable using the legal forms while capacity remains (articles 1,858 and 1,969). However, an acknowledgment of a child cannot be revoked, even when made in a will (article 1,610).
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 (article 1,864): drawn up by the notary or lawful substitute in the notarial book according to the testator’s declarations, with reading aloud before the testator and two witnesses and the required signatures. Notarial safekeeping helps location and proof; it does not prevent challenges.
Sealed or secret (article 1,868): written by the testator or at their request and signed by them. It is presented to the notary before two witnesses, with a declaration that it is their will and a request for approval. The approval instrument is drawn up and read, followed by signatures and legal sealing. It is not simply a previously sealed envelope handed over for storage; the original returns to the testator for safekeeping.
Private (article 1,876): handwritten or mechanically produced, normally read by the testator before at least three witnesses and signed by the testator and witnesses, with the remaining formalities. It requires no notary when made, but judicial publication and confirmation after death are required under articles 1,877 to 1,879, subject to the legal exceptions.
There are also special forms (maritime, aeronautical and military — articles 1,886 et seq.) for specific circumstances. Among the ordinary forms, notarial safekeeping of a public will helps location and proof, but the choice requires assessment of individual needs and circumstances.
Who can make a will?
A person aged 16 or older with full discernment at the time may make a will (article 1,860). Later incapacity does not invalidate a previously valid will, and later recovery does not validate a will made without capacity (article 1,861). Disability or an adult guardianship arrangement requires individual assessment of capacity and the court order, not an automatic conclusion. A guardian cannot make a will on the protected person’s behalf.
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
The forced share is a central restriction: where there are forced heirs, half the estate is reserved and the other half is generally disposable (articles 1,845 and 1,846). The Code lists descendants, ascendants and the spouse. A stable union must also be assessed under constitutional case law, without ignoring the partner’s rights. The calculation excludes property belonging to others, including the surviving spouse’s own marital-property share, and accounts for debts, funeral expenses and gifts subject to collation under article 1,847.
A simple statement of wishes cannot remove a child’s forced share: disinheritance requires legal grounds and the applicable process. Excessive dispositions may be reduced. Article 1,857(1) does not prevent arranging the whole division: the STJ allows a will to address the entire estate provided the forced heirs are not deprived of their reserved shares.
On formalities, the STJ allows some defects to be assessed flexibly in exceptional cases, depending on the will and proof of intention. This is not permission to omit requirements when drafting. In a decision reported on June 24, 2026, the Third Panel rejected a scheduled email without a signature or witnesses as a will. The prudent approach is to comply from the outset.
Practical example: Mr. Andrade's will
Hypothetical example: Mr. Andrade is a widower with two children and a net estate of R$ 1 million. Assume there are no other heirs, unresolved marital-property shares or earlier gifts affecting the calculation. The children’s forced share would be R$ 500,000, leaving R$ 500,000 as the disposable portion.
In this scenario, a valid will could leave R$ 300,000 to the nephew who helped him and R$ 200,000 to a charitable institution, preserving the children’s R$ 500,000 forced share. This illustrates a calculation, not a verified client outcome. Assets, debts, gifts, beneficiaries and formalities still require review; a public will is not immune to challenge.
The most common (and costly) mistakes
Disregarding the forced share. Freely disposing of more than the disposable portion, to the detriment of forced heirs, may lead to a reduction of the dispositions.
Benefiting a witness or the notary. They cannot be beneficiaries — a provision in their favor is invalid.
Choosing only by immediate cost. Evidence, safekeeping, personal circumstances and later procedures also matter.
Doing it alone, without guidance. Poorly drafted provisions, prohibited conditions or defects of form can invalidate the will.
Failing to plan safekeeping. A private or sealed original that cannot be found may frustrate implementation: preserve it and inform trusted people, without having to disclose all its contents publicly.
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 assets, debts, family relationships and possible forced heirs.
Calculate the forced share and disposable portion on the correct legal basis, considering adjustments and earlier gifts.
Decide what and to whom to allocate within the disposable portion.
Choose the appropriate form and check reading, witnesses, signatures and other requirements.
Select reliable witnesses who are not beneficiaries.
Complete the formalities for the chosen form, preserve the original and tell trusted people that it exists and where it is kept.
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?
A will is a strictly personal act by someone with testamentary capacity, arranging property and legally permitted non-property matters after death, such as acknowledgment of a child. It must respect the forced share and applicable formalities. Intestacy rules govern where no valid testamentary disposition applies. Revoking a will does not revoke an acknowledgment of a child contained in it (Brazilian Civil Code article 1,610).
What are the types of will?
The Brazilian Civil Code provides three ordinary forms: a public will entered in the notarial book with reading, two witnesses and signatures; a sealed will presented to the notary before two witnesses for approval and subsequent sealing; and a private will, handwritten or mechanically produced, normally read by the testator before at least three witnesses and signed by the participants. Special forms and exceptions have their own requirements. After death, the applicable legal procedure must be followed, including judicial publication and confirmation of a private will.
How much of my estate can I leave by will?
Where there are forced heirs, half the estate is the forced share and the other half is generally disposable. Article 1,845 lists descendants, ascendants and the spouse; a stable union must also be assessed under constitutional case law, without disregarding the partner’s rights. The calculation requires separating the surviving partner’s own marital-property share, debts and other legal adjustments. Without forced heirs, the entire estate may be disposed of, subject to other restrictions. A will may organize the division of the whole estate without reducing the forced share.
How much does it cost to make a will?
Fees for a public will and notarial approval of a sealed will follow the current state schedule; any legal advice is charged separately. A private will normally requires no notary when made, but judicial publication and confirmation after death may also generate costs. Check the current schedule and legal basis for any exemption or fee waiver: inability to pay does not automatically make every testamentary act free of charge.
Where do I register a will in São Paulo?
A public will remains in the notarial books. Once approved and sealed, a sealed will is returned for the testator’s safekeeping. A private will is not automatically registered with a notary: preserve the original and tell trusted people that it exists and where it is kept. Subject to its rules, CENSEC searches records of public wills and approvals of sealed wills, but does not necessarily locate all private wills. The procedures under CPC articles 735 to 737 must be followed after death.
Do I need a lawyer to make a will?
A lawyer is not a general legal requirement for making a will. Advice can help review capacity, form, the forced share, beneficiaries and wording, and compatibility with gifts or other arrangements. It reduces risks but cannot guarantee an unchallengeable will or prevent future disputes. Advice when making the will is separate from representation required in subsequent court proceedings.
Deciding during life is the greatest gift you can leave
Making a will can express decisions calmly and give those left behind clearer guidance. A carefully drafted document may reduce disagreements, but does not remove every conflict or replace the succession procedures required after death.
It is important to respect the law — especially the forced share —, select the appropriate form and preserve the document. Where suitable, a will can be coordinated with gifts or interests in a family holding company. Each arrangement has costs and civil and tax consequences that must be assessed together.
At Falchet e Marques Sociedade de Advogados, in São Paulo (Av. Paulista), we advise on wills and estate planning, including the disposable portion, the appropriate form and drafting. The review aims to reduce risks and express wishes within legal limits, without guaranteeing an outcome or the absence of challenges.
Talk to our team on WhatsApp: +55 11 95901-1854 — and discuss the arrangements for your estate.