Estate planning: how to organize an inheritance during life and avoid conflicts?
Estate planning: instruments (will, gift, reservation of usufruct, family holding company, partition during life), advantages, and respect for the forced share (legítima). How to organize an inheritance in São Paulo.
Estate planning means organizing, during life, the transfer of one's assets to the heirs — with less cost, less conflict, and less probate time. It combines a will, a gift (including with reservation of usufruct), a family holding company, partition during life (art. 2,018 of the Brazilian Civil Code), and protective clauses, always respecting the forced share (legítima) of the forced heirs. It is about turning an improvised succession into a planned transition.
Need help with your case? Organise your estate planning in São Paulo.
No one likes to think about their own absence. But not planning succession means leaving the family, at the worst possible moment, a lengthy, expensive, and often litigious probate — with assets frozen for years, taxes piling up, and siblings fighting. The cost of inaction here is high and predictable. The good news is that this script can be rewritten: estate planning allows you to organize, during life, how your assets will be transferred, with savings, security, and harmony.
In this guide, you will understand what estate planning is, what its main instruments are, the advantages of planning during life, and how all of it respects the children's mandatory inheritance — all in light of the Brazilian Civil Code and the reality of São Paulo.
What is estate planning?
Estate planning is the set of measures to organize, while still alive, the transfer of one's assets to the heirs — with less cost, less conflict, and less probate time. Instead of letting succession happen in an improvised way after death, the owner of the assets decides and structures, in advance, how and to whom their assets will pass.
It is important to state what planning is not: it is not a way to circumvent the mandatory inheritance, nor to disinherit children. It operates, above all, on the disposable portion of the estate and on the form and the timing of the transfer, always respecting the forced share (legítima) of the forced heirs. Estate planning is, in essence, care — for the estate and, above all, for the people left behind.
What are the main instruments?
Planning combines several instruments, according to the estate and the family:
Will: organizes the disposition of the disposable portion of the estate and may include important provisions (waiver of hotchpot (colação), appointment of an estate administrator).
Gift during life: transfers assets to the heirs in advance — including with reservation of usufruct, keeping the donor in control.
Family holding company: concentrates the assets in a company, with rules for succession and governance, facilitating management and the transfer of quotas.
Partition during life: the ascendant may partition their assets among the descendants, by an act between living persons or by will, provided it does not impair the forced share (art. 2,018 of the Brazilian Civil Code).
Protective clauses: inalienability, non-seizability, and non-communicability, which shield the transferred assets.
Each of these instruments has its own advantages and precautions — and the strength of planning lies in combining them coherently. We address several of them in specific articles on our blog; here, the focus is on how they fit together into a plan.
What are the advantages of planning succession during life?
The benefits are concrete and touch on time, money, and relationships:
Reduces the cost and time of probate: assets already transferred (or organized in a holding company) do not need to go through traditional probate, shortening timelines and expenses.
Prevents conflicts: clear rules, defined by the owner, head off the disputes that tend to arise among heirs.
Keeps the owner in control of the assets: with the reservation of usufruct, the owner transfers ownership but continues to use and manage the assets.
Organizes family businesses: the holding company defines the succession and management of the business, preventing it from falling into crisis during the transition.
Can bring tax efficiency: anticipating the transfer, with planning, organizes the ITCMD and the costs.
In short, planning delivers to the family an organized, predictable, and harmonious transition — the opposite of the improvised probate that so many families face.
Does planning respect the children's mandatory inheritance?
Yes — and it must. This is the central limit of estate planning. The forced share (legítima) — the half (50%) of the estate reserved for the forced heirs (descendants, ascendants, and spouse) — cannot be eliminated by any planning instrument.
The partition during life itself, made by the ascendant, is valid provided it does not impair the forced share of the forced heirs (art. 2,018 of the Brazilian Civil Code). In other words, the owner may organize and even anticipate the division, but within respect for the mandatory portion. Planning operates with freedom over the disposable portion and over the form and the timing of the transfer — not over the elimination of rights. It is precisely this balance between will and law that makes planning, when well done, secure and unassailable.
Practical example: the Ribeiro couple's planning
The Ribeiro couple, from São Paulo, had an estate typical of many families: the house they lived in, a rented apartment, and a mid-sized company, in addition to two children. They feared what they had seen so many families go through: a long and expensive probate, the company paralyzed during the transition, and the risk of a fight among the children.
With integrated estate planning, the couple reorganized everything during their lifetime. They structured a family holding company to concentrate the real properties and the stake in the company, defining succession and management rules; they made the gift of the quotas to the children with reservation of usufruct, keeping the control and the income while alive; they included protective clauses (non-communicability and non-seizability) to shield the estate; and they made a will organizing the disposable portion and waiving hotchpot (colação) where appropriate — all respecting the forced share (legítima) of the two children. The result: the estate is organized, the company has guaranteed continuity, the future probate will be simple and inexpensive, and the children know exactly what to expect — averting conflict. The couple turned an uncertainty into a plan. That is what estate planning delivers.
The most common (and costly) mistakes
Not planning. It leaves the family a lengthy, expensive, and potentially litigious probate.
Impairing the forced share. Any instrument that eliminates the heirs' mandatory portion is void on that point.
Using a single instrument in isolation. The strength lies in coherently combining will, gift, holding company, and clauses.
Ignoring the ITCMD and the costs. Planning without sizing the taxation can wipe out the intended savings.
Leaving it to the last minute. Planning requires time and clarity of mind — postponing means risking the loss of the opportunity.
Checklist: for effective estate planning
Make a complete assessment of the estate and the family.
Calculate the forced share (legítima) and the disposable portion.
Choose and combine the instruments (will, gift, usufruct, holding company, clauses).
Size the ITCMD and the costs of each structure.
Respect the forced share of the forced heirs throughout the plan.
Conduct the planning with a lawyer in an integrated way.
Frequently asked questions about estate planning
What is estate planning?
It is the set of measures to organize, while still alive, the transfer of one's assets to the heirs, with less cost, less conflict, and less probate time. It uses instruments such as the will, gift (with or without reservation of usufruct), family holding company, partition during life, and protective clauses, always respecting the forced share (legítima) of the forced heirs. The goal is for succession to occur in a planned manner, rather than improvised after death.
What are the main instruments of estate planning?
The most commonly used are: the will, which organizes the disposable portion of the estate; the gift during life, including with reservation of usufruct (transferring assets but retaining control); the family holding company, which concentrates the assets in a company with succession rules; the partition during life made by the ascendant (art. 2,018 of the Brazilian Civil Code); and the protective clauses (inalienability, non-seizability, non-communicability). The combination depends on the estate and the family.
What are the advantages of planning succession during life?
It reduces the cost and time of probate, prevents conflicts among heirs, keeps the owner in control of the assets (for example, via usufruct), allows the management of family businesses to be organized, and can bring tax efficiency by anticipating the transfer. Instead of leaving the family facing a lengthy and potentially litigious probate, planning delivers an organized, predictable, and harmonious transition.
Does estate planning respect the children's mandatory inheritance?
Yes — and it must. The forced share (legítima), which is half of the estate reserved for the forced heirs (descendants, ascendants, and spouse), cannot be eliminated by planning. The partition during life made by the ascendant is valid provided it does not impair the forced share (art. 2,018 of the Brazilian Civil Code). Planning operates, above all, on the disposable portion and on the form and timing of the transfer, without eliminating the heirs' rights.
When should I do estate planning in São Paulo?
Ideally, before the need arises — while there is time and peace of mind to decide. It is especially worthwhile for those who own real property, a business, significant assets, or a family with conflict potential. In São Paulo, where the ITCMD and probate costs weigh heavily, organizing things in advance brings savings and security. A lawyer at Falchet e Marques assesses the estate and the family and designs the most suitable plan.
Do I need a lawyer to do estate planning?
Yes, it is indispensable. Estate planning combines family, succession, real estate, corporate, and tax law, and it requires respecting the forced share, calculating the ITCMD, and correctly drafting each instrument. A mistake can result in nullity, undue taxation, or conflict. A lawyer at Falchet e Marques, in São Paulo, conducts the planning in an integrated way, designing the structure tailored to the estate and the family's goals.
Planning succession is the greatest act of care for the family
Estate planning transforms what is usually a moment of pain and conflict — probate — into an organized and harmonious transition. By combining will, gift, reservation of usufruct, family holding company, partition during life, and protective clauses, and always respecting the forced share, the owner of the estate decides their own legacy, instead of leaving it to chance.
The key is integration: no single instrument solves everything on its own; it is the coherent combination, designed for the estate and the family, that delivers savings, security, and peace. And the best time to start is while there is time and peace of mind.
At Falchet e Marques Sociedade de Advogados, a firm in São Paulo (Av. Paulista), we work in estate and asset planning — designing tailored structures, with will, gifts, holding company, and clauses, in an integrated way and within the law. If you want to organize your succession and protect your family, it is worth starting the planning.
Talk to our team on WhatsApp: +55 11 95901-1854 — and organize your family's succession with security and care.