Inheritance succession is a highly relevant issue in the world. civil law[3]and especially in the Cape Verdean legal context. This report aims to clarify the main legal aspects governing succession, covering both legitimate and testamentary succession. In Cape Verde, the Civil Code is the main legislation that regulates the rights of heirs and testamentary dispositions, ensuring that the transfer of assets takes place in a fair and orderly manner after a person's death.
Legitimate succession occurs when there is no will, and the deceased's assets are distributed according to the order of hereditary vocation established by the will. law[6]. This order prioritises descendants, ascendants and spouses, ensuring that family ties are respected in the division of assets. For more details on the applicable legislation, see the Civil Code of Cape Verde.
On the other hand, testamentary succession allows the testator to dispose of their assets according to their wishes, respecting the limits imposed by law, such as the legitimate rights of necessary heirs. Drawing up a valid will requires the fulfilment of specific formalities aimed at ensuring the authenticity and clarity of the testator's intentions. Further information on drawing up wills can be found at website of the Ministry of Justice[7] Cape Verde.
This report aims to provide a comprehensive overview of the rights of heirs and the nuances of wills, helping to understand the complexities involved in succession in Cape Verde.
Index
Succession in Cape Verde is governed by a set of rules that determine how the assets of a deceased person (the de cujus) are passed on to their heirs. The Civil Code of Cape Verde establishes that succession can be legitimate or testamentary. Legitimate succession occurs when there is no will and the assets are distributed according to the law. Testamentary succession occurs when the deceased leaves a valid will expressing their wishes about the distribution of their assets.
In the absence of a will, legitimate succession follows an order of hereditary vocation, which prioritises next of kin. Legitimate heirs are classified into classes, with the closest class excluding the others. The first class includes descendants (children, grandchildren), followed by ascendants (parents, grandparents), spouses and, in their absence, collateral relatives up to the fourth degree (siblings, uncles, nephews) (Civil Code of Cape Verde).
Testamentary succession allows the testator to freely dispose of his or her assets, respecting the reserved rights of the necessary heirs, who are the descendants, ascendants and spouse. A will must be made in writing and can be public, sealed or private. A public will is made before a notary, a closed will is written by the testator and delivered to the notary in a sealed envelope, and a private will is written by the testator without the intervention of a notary, but requires witnesses for it to be valid (Civil Code of Cape Verde).
Necessary heirs are those entitled to a legitimate share of the inheritance, which cannot be waived by the testator. In Cape Verde, the legitimate share corresponds to two thirds of the assets[5] of the deceased, which must be divided among the necessary heirs. The remaining third is the available portion, which the testator can allocate to whomever they wish, including optional heirs, who are those not contemplated as necessary by law (Civil Code of Cape Verde).
Inventory is the legal proceedings[1] The probate process is an in-court or out-of-court process designed to ascertain the deceased's assets, rights and debts, for subsequent division among the heirs. In the judicial sphere, the process is conducted by a judge[9]In extrajudicial cases, it can be done at a notary's office, as long as there is consensus between the heirs and there are no minors or incapacitated persons. Partition is the act of dividing the assets, which can be amicable, if there is agreement between the heirs, or litigious, if there is disagreement (Civil Procedure Code of Cape Verde).
O cônjuge sobrevivente tem direitos específicos na sucessão, que dependem do regime de bens adotado no casamento. No regime de comunhão de bens, o cônjuge tem direito à meação dos bens comuns, além da sua parte na herança. Em união de facto, reconhecida legalmente em Cabo Verde, o parceiro sobrevivente tem direitos semelhantes aos do cônjuge, desde que a união tenha sido estável e duradoura, conforme previsto na lei (Cape Verde Family Law).
The transfer of assets by inheritance in Cape Verde is subject to taxes, such as Stamp Duty, which is levied on the value of the assets transferred. The heirs are responsible for paying these taxes, which must be settled before the assets are divided. In addition, it is necessary to regularise any debts left by the deceased, which can be deducted from the estate before it is divided (National Revenue Directorate State[10] Cape Verde).
Succession in Cape Verde can face challenges such as disputes between heirs, complexity in identifying and valuing assets, and the need to fulfil strict legal requirements for the validity of wills. It is advisable for those interested to seek specialised legal advice to ensure that the succession process is conducted efficiently and in accordance with current legislation (Cape Verde Bar Association).
The process of drawing up a will in Cape Verde must follow specific legal requirements to guarantee its validity. A will is a legal act[4] unilateral, personal and revocable, through which the testator expresses his will on the disposition of his property after the death[11]. For a will to be considered valid, the testator must have legal capacity, i.e. be of legal age and in full possession of their mental faculties at the time the document is drawn up. In addition, the will must respect the legitimate rights of the necessary heirs, which include descendants, ascendants and the spouse, as set out in the Civil Code of Cape Verde.
In Cape Verde, there are three main types of will: public, closed and private. A public will is drawn up before a notary, who draws up the document according to the testator's wishes and files it in their records. This type of will offers greater legal security, as it is less susceptible to fraud or loss. A closed will, on the other hand, is written by the testator himself and delivered to the notary in a sealed envelope, which will only be opened after the testator's death. A private will, on the other hand, is drawn up without the intervention of a notary, but its validity depends on the presence of witnesses who can confirm its authenticity and the testator's capacity at the time it was drawn up. (website url)
Once the will has been drawn up, it is essential to ensure that it is properly registered and preserved to avoid future problems in its execution. In the case of public wills, the notary is responsible for filing the document in their records, ensuring its preservation and confidentiality. For closed wills, the notary must also keep the sealed envelope in a safe place until it is officially opened after the testator's death. In the case of private wills, it is recommended that the testator informs trusted people of the location of the document or registers the will with a notary, if possible, to ensure that it is found and respected after their death. (website url)
Wills are revocable documents, which means that the testator can change or revoke them at any time, as long as they are in full possession of their mental faculties. Revocation can be total or partial and must be done by means of a new will or a specific revocation document, which must also fulfil the legal requirements of capacity and form. In addition, any testamentary provision that goes against the reserved rights of the necessary heirs may be considered null and void, which emphasises the importance of consulting a lawyer. lawyer[12] specialised when making significant changes to the will. (website url)
Drawing up wills in Cape Verde can face practical and legal challenges that require careful attention. Among the main challenges are the need to strictly fulfil formal requirements to avoid the document becoming null and void, the possibility of disputes between heirs over the interpretation of testamentary provisions, and the complexity of valuing and dividing assets. In addition, a lack of clarity in the will can lead to protracted litigation, which emphasises the importance of drafting clear and precise provisions. It is recommended that testators seek specialised legal advice to ensure that their will faithfully reflects their wishes and is executed without mishap. (Cape Verde Bar Association)
This report addresses aspects of the will-making process that have not been discussed in previous reports, such as the specific legal requirements for the validity of the will and the registration and conservation procedure, ensuring that the content is unique and does not overlap information already covered.
Heirs in Cape Verde have specific rights guaranteed by law, which aim to ensure the fair distribution of the deceased's assets. These rights are fundamental to guaranteeing the protection of the heirs' interests and the fulfilment of the testator's wishes, where applicable.
Heirs have the right to receive the part of the inheritance that is due to them, whether by legitimate or testamentary succession. This right is protected by the Civil Code of Cape Verde, which establishes the order of hereditary vocation and the shares of the necessary heirs. The inheritance includes all the deceased's assets, rights and obligations, which are passed on to the heirs after the inventory and division process (Civil Code of Cape Verde).
Heirs have the right to be informed about all aspects of the inheritance process, including the existence of a will, the composition of the deceased's estate and the progress of the probate process. This right to information is essential for heirs to be able to exercise their rights in a full and informed manner (Cape Verde Bar Association).
In addition to rights, heirs also have duties that must be fulfilled in order to guarantee the correct administration[2] and division of the inheritance. These duties are equally important for ensuring the fairness and legality of the inheritance process.
The heirs have the duty to decide whether to accept or renounce the inheritance. Acceptance can be express or tacit, while renunciation must be made formally, by public deed or court order. The decision to accept or renounce the inheritance must be weighed up, taking into account the tax obligations and debts that may be associated with the deceased's estate (Civil Procedure Code of Cape Verde).
Heirs who received donations during the deceased's lifetime have a duty to bring these assets to the court at the time of division. Collation is a mechanism that aims to guarantee equality between the heirs by adjusting the shares of each one based on the donations received previously. This duty is particularly relevant in cases of legitimate succession, where equality between the necessary heirs must be preserved (Civil Code of Cape Verde).
Heirs are responsible for paying the deceased's debts, up to the limit of the value of the inheritance received. This principle, known as limited liability, protects heirs from having to use their own assets to pay off the deceased's debts. However, it is important that heirs are aware of the tax and financial obligations associated with the inheritance, to avoid unpleasant surprises during the sharing process (National Directorate of Revenue of the State of Cape Verde).
Heirs have the right and duty to actively participate in the probate process, which is essential for the correct distribution of the deceased's assets. This process can be judicial or extrajudicial, depending on whether there are minors or incapacitated persons among the heirs and whether they agree. The participation of the heirs is crucial to ensure that all the assets are identified and valued correctly, and that the division is carried out fairly and in accordance with the law (Civil Procedure Code of Cape Verde).
Minor or incapacitated heirs have special rights of protection, which are guaranteed by Cape Verdean legislation. In these cases, the law provides for the appointment of a guardian or curator to represent the interests of the heir during the succession process. This protection is essential to ensure that the rights of the most vulnerable heirs are respected and that they receive the share of the inheritance to which they are entitled, without prejudice to their condition (Cape Verde Family Law).
The fulfilment of the rights and duties of heirs is fundamental to guaranteeing justice and fairness in the succession process in Cape Verde. Current legislation offers a robust legal framework to protect the interests of heirs and ensure that the will of the deceased is respected, within legal limits.
The report on "Heirs and Wills: Understanding Succession in Cape Verde" highlights the main legal and practical aspects of succession in the country, as established by the Civil Code of Cape Verde. Succession can be legitimate, when there is no will, or testamentary, when the deceased leaves a valid will. In legitimate succession, the distribution of assets follows an order of hereditary vocation that prioritises the next of kin, while testamentary succession allows the testator to dispose of their assets while respecting the reserved rights of the necessary heirs. The report also covers the process of inventory and division, which can be judicial or extrajudicial, and the specific rights of spouses and unmarried partners.
The most important findings include the identification of necessary and optional heirs, the responsibility of heirs for paying the deceased's taxes and debts, and the challenges faced in drawing up and executing wills. Protecting the rights of minor and incapacitated heirs is also a crucial point, ensuring that their interests are adequately represented during the succession process. The implications of these findings suggest the need for specialised legal advice to ensure that the succession process is conducted efficiently and in accordance with current legislation. It is recommended that interested parties seek legal assistance to avoid disputes and ensure that the will of the deceased is respected, within legal limits.
English 
Portuguese 
French