Of the will and its implication in the inventory and sharing: a dialogue

Português

Abstract

This article brings reflections on testamentary succession and its implication in inventory and sharing of assets. Initially, the history of testamentary succession was discussed, as well as its historical development in Brazilian civil law. It was also explained about the procedural progress of the inventory and sharing, instrument of transfer of assets of the author successions, as well as what were the changes made to the current Civil Code. This research is justified as an opportunity to reflect on the questions surrounding legal discourses, norms, and principles that aim to regulate the transfer of ownership of someone's assets to their successors. To what extent does the use of a will facilitate the division of assets in the probate process? What are the main legal challenges in the probate process, and how should the judiciary proceed to rebalance the division? How does the requirement of probate compromise the division and the autonomy of will? In light of all the above, it is interpreted that a will is an institution whose main purpose is to protect the testator's last wishes and can be made by any person who has the capacity to make a will. Furthermore, a low culture of formalities is observed, delaying the delivery of the share to the heirs. In addition, the lack of clarity in the drafting of wills can overburden the probate phase with procedural incidents and prejudice the validity of the will. And, finally, it was demonstrated that the purpose of each will is to ensure that the testator's last will is fully complied with and, for this to occur, it is necessary to comply with the formalities determined by law, as all wills have well-defined rules and if these rules are not observed, they will lose its effectiveness and may be declared null. The method used in the research investigation phase was inductive, dialectical and Jurisprudence.