Publicações elaboradas pelo Dr. Artur da Costa Bruno
- GLOSSÁRIO DE TERMOS USADOS NAS ÁREAS DE FINANÇAS, CONTABILIDADE E JURÍDICA
AAE (Advances Against Exchange) - ACC (Adiantamento sobre Contrato de Câmbio)
accounts payable - contas a pagar
account statement - extrato de conta
accrual basis - regime de competência
advances ? adiantamentos
affiliated ? afiliado
allocate - provisionar, reservar
allowance - reserva, fundo, subsídio; mesada
amendment - emenda, alteração de contrato
appeal - recurso a uma instância superior
applicable - aplicável; que se refere a
arbitrage - arbitragem; obtenção de lucro pela diferença de taxas ou preços em mercados financeiros ou bolsas de mercadorias
articles of incorporation - documento constitutivo, contrato social, estatutos; amendment to the articles of incorporation - alteração de contrato social
artificial person - pessoa jurídica
assets ? ativo
attached ? anexo
attorney ? procurador
attorney-at-law ? advogado
audit adjustment - ajuste de auditoria
auditing ? auditoria
average ? média
back to back - empréstimo lastreado em depósito de igual valor em moeda estrangeira junto a um banco correspondente -- as divisas não saem do exterior
bad debt - crédito de liquidação duvidosa
bailout - auxílio financeiro, socorro financeiro
balance of payments - balança de pagamentos
balance sheet ? balancete
bankrupt ? falido
bankruptcy ? falência
barrister - no sistema jurídico britânico, advogado especialista em defesas orais, que atua predominantemente junto a tribunais de instâncias superiores. Na Escócia usa-se o termo ?advocate?.
bid bond - carta-oferta; fiança de licitação
bidder ? licitante
bonus ? gratificação
book entry ? lançamento
book value - valor contábil
borrower - aquele que recebe empréstimo
borrowing - empréstimo (solicitado,recebido)
branch ? filial
breach of contract - descumprimento de contrato, quebra de contrato
break-even point - ponto de equilíbrio, sem perdas nem lucros
budget ? orçamento
buildings - construções, prédios
business corporation - sociedade anónima (EUA)business day - dia útil
buying commission - comissão sobre compras
buying power - poder de compra, poder de consumo
bylaws - documento operacional; a parte reguladora do contrato social
cable transfer - transferência por cabo (telegrama) ou telex em operações bancárias com o exterior
capital expenditure - dispêndio com ativos fixos
cash - dinheiro sonante; descontar um cheque
cash basis - regime de caixa
cash book - livro-caixa
cash-flow - fluxo de caixa
cash payment - pagamento a vista
certificate of incorporation - mesmo que "articles of incorporation"
c/f (carried forward) - a transportar (lançamento)
chart of accounts - plano de contas
checking account - conta corrente
close corporation - sociedade limitada de capital fechado regida por contrato entre os acionistas
COD (cash on delivery) - pagamento contra entrega
collection - cobrança
commercial law - direito comercial
commission - comissão
commodity exchange - bolsa de mercadorias
common law - jurisprudência
common share - ação ordinária
common stock - participação acionária em ações ordinárias
compensation - indenização; compensação
complaint - petição inicial
compound interest - juros compostos
controller - gerente de contabilidade, pessoa responsável pelas operações contábeis de uma organização
copyright - direitos autorais
CPA (Certified Public Accountant) - contador oficialmente credenciado
corporate name - razão social
corporation - sociedade anônima (pessoa jurídica independente de seus acionistas); pessoa jurídica, corporação
correspondent bank - banco correspondente no exterior
cost-benefit analysis - análise custo x benefício
cost center - centro de custo
counsel - advogado. Termo usado para designar e se dirigir a um advogado defendendo uma causa.
credit - crédito; creditar
criminal law - direito penal
current - corrente, realizável a curto prazo
current assets - ativo circulante
current liabilities - passivo circulante
customs broker - despachante aduaneiro
DBA (doing business as) - nome fantasia
dead file - arquivo morto
deadline - data limite
dealer - distribuidor, revendedor, intermediário
debit - débito; debitar
debt - dívida
debt assumption - assunção de dívida
default - inadimplemento, inadimplência; dívida não paga de acordo com seus termos
defaulter - inadimplente
deferred - diferido, transferido para data posterior ou parcelado
deficit - déficit
demand deposit - depósito a vista
Department of the Treasury (US) - Tesouro Nacional, Ministério da Fazenda nos EUA
depositary - fiel depositário
depreciation - depreciação
direct labor - mão-de-obra direta
down payment - entrada; sinal; pagamento inicial
draft - duplicata; saque; ordem de pagamento; rascunho, minuta
drawback - devolução ou reembolso de obrigações aduaneiras referentes à importação de insumos para produtos de exportação
due date - data de vencimento, data de pagamento
dues - mensalidades, pagamentos
earnings - ganhos, dividendos
E-mail or email (electronic mail) - correio eletrônico; sistema de comunicação por escrito a longa distância através de computadores interligados
embezzlement - apropriação indébita; desfalque; crime do colarinho branco
employee - empregado, funcionário
enclosed - anexo
entertainment - lazer, diversão
entity - entidade
entry - lançamento
EPP (export prepayment) - pré-pagamento de exportação
equity - equivalência
exchange broker - corretor de câmbio
exchange rate - taxa de câmbio
excise tax - imposto sobre fabricação, distribuição ou venda de produtos
executive officer - diretor
expired - vencido, sem validade
export tax - imposto de exportação
facilities - instalações
fees - taxas
figure - dado, valor; figura
file taxes - fazer a declaração do imposto de renda
financial - financeiro
financial year - exercício
finished goods - produtos acabados
fiscal year - exercício, ano contábil
fixed assets - ativo fixo, permanente, ativo imobilizado
fixed interest rate - juros prefixados
foreign - estrangeiro, externo
foreign debt - dívida externa
foreign exchange - câmbio
foreign exchange policy - política cambial
form - formulário; formar
freight - frete
furniture - mobília
GAAP (Generally Accepted Accounting Principles) - Princípios Gerais de Contabilidade
gain or loss - ganhos ou perdas
GATT (General Agreement on Tariffs and Trade) - acordo geral de tarifas e comércio
general partnership - sociedade com responsabilidade ilimitada, regida por um contrato entre as partes
GNP (Gross National Product) - PIB (produto interno bruto)
goodwill - fundo de comércio, reputação
grace period - prazo de carência
gross - bruto
gross income - receita bruta
guarantor - avalista, fiador
handling - manuseio, manipulação
hard currency - moeda forte
head office - matriz
headquarters - matriz, escritórios centrais
IASC (International Accounting Standards Committee) - Comitê Internacional de Padrões Contábeis
idle - parado, inativo
IMF (International Monetary Fund) - FMI (Fundo Monetário Internacional)
import duty - imposto de importação
income - receita, renda, entrada
income taxes - imposto de renda
income tax refund - restituição de imposto de renda
income tax return - declaração de imposto de renda
increase - aumento
inflation - inflação
inflation adjustment - correção monetária
input - alimentação; entrada de dados
installment - prestação; pagamentos mensais
insurance - seguro; fire insurance - seguro contra incêndio
interest - juro; interesse
interest rate - taxa de juros
Internal Revenue Service (IRS) - órgão da receita federal dos EUA
inventory - inventário, lista discriminada de ativos
investments - investimentos, aplicações
invitation for a bid - licitação, abertura de concorrência
invoice - nota fiscal, fatura
IRS auditor - fiscal da Receita Federal
janitor - encarregado de limpeza, zelador
joint - em conjunto, unido; articulação
joint stock company - sociedade anônima
joint venture - empreendimento conjunto; sociedade em conta de participação
juristic person (corporation) - pessoa jurídica
labor - mão-de-obra; esforço físico ou mental; trabalho de parto
labor law - direito do trabalho
land - terrenos, terra; aterrissar (se usado como verbo)
lawsuit - ação judicial, processo
lawyer - advogado
L/C (Letter of Credit) - carta de crédito
ledger - livro-razão
legal entity - pessoa jurídica
legal opinion - parecer jurídico
legal proceedings - trâmites legais
letter of credit - carta de crédito
letter of guarantee - carta de garantia
liabilities - passivo; obrigações
LIBOR (London Inter-Bank Offer Rate) - taxa normal de juros internacionais
limited liability company (LLC) - sociedade limitada norte-americana; sociedade por quotas de responsabilidade limitada. Normalmente abreviado para Ltd.
limited partnership - sociedade por quotas de responsabilidade limitada
lines of credit - linhas de crédito
loan - empréstimo
long-term - a longo prazo
long-term assets - realizável a longo prazo
Ltd. (limited liability company) - Ltda. (companhia limitada)
machinery and equipment - máquinas e equipamentos
margin - margem; margem (de lucro)
market share - participação (fatia) de mercado
maturity - vencimento; maturidade
MBA (Master of Business Administration) - mestrado em administração de empresas
merger - incorporação ou fusão de empresas
minority - minoria, proprietários em minoria
minutes (of a meeting) - ata (da reunião)
miscellaneous - diversos
money laundering - lavagem de dinheiro
mortgage - hipoteca
municipal service tax - ISSQN
natural person (individual) - pessoa física
net equity - patrimônio líquido
net income - receita líquida
net profit - lucro líquido
net sales - vendas líquidas
notary public - pessoa autorizada a reconhecer firma e autenticar documentos; tabelião
off-book accounting - caixa 2
ordinance - lei municipal
outstanding balance - saldo pendente
overdue - já vencido e não pago; devido; atrasado
overhead - despesas indiretas
ownership - propriedade
paid-in - integralizado
paid-in capital - capital integralizado, capital realizado
payable - pagável, a pagar
payroll - folha de pagamento
petty cash - dinheiro em caixa para pequenas despesas
plaintiff - autor (de uma ação)
plant - fábrica, parque industrial; planta (vegetal)
postage - despesas de correio
post-dated check - cheque pré-datado
power of attorney - procuração
preferred share - ação preferencial
preferred stock - participação acionária em ações preferenciais
prepaid expenses - despesas antecipadas
prepayment - pagamento antecipado
previous - anterior, prévio
price quotation - tomada de preços
prime rate - a mais baixa taxa de juros para clientes preferenciais no mercado norte-americano
profit - lucro; lucrar
property tax - imposto sobre propriedade imobiliária; imposto predial e territorial
proxy - procurador, outorgado; procuração
public limited company - sociedade anônima (UK)
public translator - tradutor juramentado
purchase - compra; comprar
purchasing power - poder de compra, poder de consumo
quarter - trimestre
quarterly - trimestral
raw materials - matérias-primas
rate - taxa, índice
real estate - imóveis
receivable - recebível, contas a receber (do Ativo Realizável)
regular corporation - sociedade anônima norte-americana
reimbursement - reembolso, devolução
remittance - remessa de dinheiro
rent - aluguel; alugar
report - relatório; relatar, reportar-se
residual value - valor residual
retained earnings - lucros retidos
retirement - aposentadoria
return on investment (ROI) - retorno sobre o investimento
royalty - preço pago pelo direito de uso de marca ou patente
sales - vendas
sales commission - comissão de vendas
savings account - caderneta de poupança
schedule - tabela, programa, horário, lista
securities - títulos (ações, obrigações, valores etc.)
self-employed - profissional autônomo
settlement - quitação, liquidação; acordo
shareholder - acionista
short-term - a curto prazo
solicitor - no sistema jurídico britânico, advogado especialista em trabalhos de natureza mais técnica e burocrática (ao contrário do barrister), tais como: testamentos, divórcios, contratos sociais. Trabalha normalmente em contato direto com o cliente e atua predominantemente em tribunais de instâncias inferiores.
spread - margem de lucro; comissão do banco
standby letter of credit - aviso de carta de crédito
statement - posição, demonstrativo; declaração
statute of limitations - prescrição, qualquer lei que estabelece limite de tempo para reivindicação de direitos via judicial
stock - ações, participação acionária; estoque
stock exchange - bolsa de valores
stockholder - acionista
stock market - mercado de capitais
stockroom - almoxarifado
storage - armazenamento
straight-line depreciation method - método de depreciação linear
subpoena - ordem judicial para comparecer em juízo e testemunhar ou apresentar documentos
subscription - assinatura de periódicos
subsidiary - subsidiária
sue - processar, acionar em juízo
sundries - artigos pequenos, vários
supplies - suprimentos
supply and demand - oferta e procura
surplus - superávit
SWIFT (Society for Worldwide Interbank Financial Telecomunications) - transferência por cabo (telegrama) ou telex em operações bancárias com o exterior
takeover - aquisição
taxation - tributação
tax break - incentivo fiscal; isenção fiscal; dedução ou abatimento de imposto
tax deduction - dedução de impostos
taxes - impostos
tax evasion - sonegação de impostos
tax exemption - isenção de impostos
tax haven - paraíso fiscal
tax incentive - incentivo fiscal
taxpayer - contribuinte
tax provision - provisão de impostos
tender - oferta, proposta
terms of payment - condições de pagamento
time deposit - depósito a prazo fixo
timetable - cronograma, horário
toll - pedágio
tools - ferramentas
trade - comércio; intercâmbio comercial; comercializar
trademark - marca registrada
trade surplus - superávit comercial
transfer - transferência; transferir
travel - viajar, de viagem
treasury - tesouro, ministério da fazenda
turnover - volume de dinheiro movimentado em um período
uncollectible - incobrável
unpaid - não pago, a pagar
utilities - luz, água, etc.
value-added tax - ICMS, imposto sobre valor agregado
value date (due date, maturity date) - data de vencimento
variable costing - custeio variável
warehouse - depósito, armazém
whole - integral, inteiro, no todo
wire SWIFT code (SWIFT) - transferência por cabo (telegrama) ou telex em operações bancárias com o exterior
withdraw - retirar, sacar
withdrawal - retirada, saque
withhold - reter
witness - testemunha; testemunhar
working capital - capital de giro
work in progress - trabalho em andamento
writedown - redução de valor; baixa parcial; depreciação
written-down value - valor escriturado
write off - dar baixa; cancelar- CAYMAN ISLANDS & THE BERMUDAS NO LONGER OFFSHORE
CAYMAN ISLANDS & THE BERMUDAS
NO LONGER OFFSHORE
On 13th May, 2010 an agreement was made between Portugal and the Cayman Islands and the Bermudas. This could have an effect on all property owners that have investments and offshore companies based in these no-longer offshore islands.
This agreement relates primarily to the exchange of fiscal information and is based on the agreement drafted by the Organization for Economic Co-operation and Development (OECD).
This means that the authorities in the Cayman Islands and the Bermudas will be required, under international law, to provide the Portuguese taxman with the fiscal information requested.
The main aim of this agreement is to contribute to the fight against fraud, tax evasion and money laundering. However, it also covers other issues such as existing investments in other offshore territories, which means the long arm of the Portuguese taxman will reaching far beyond the shores of the Cayman Islands.
Anyone that has an investment or an offshore company based in the Cayman Islands or the Bermudas should be aware that this information will no longer be protected by previous promises of anonymity and secrecy, and will be shared with the Portuguese fiscal authorities upon their request.
SO WHAT IS AN OFFSHORE?
On 13th February 2004, Portugal published Decree Law 150/2004 which lists the territories that are considered to be offshore. Offshore territories are those with a preferential fiscal system who?s taxman allows for very low or non-existent rates of tax, which can be attractive to some foreign investors. In addition to these advantages, offshore territories offer: flexible legislation in the incorporation of companies; flexible financial legislation; very rigid anonymous banking and working secrecy; unrestricted currency exchange; and efficient financial and communication systems within a strong and stable political and social region.
The Cayman Islands and the Bermudas are no longer included on this list.
CAN TBS (TAX BENEFITS STATUS) BE USED BY COMPANIES WITH HEAD-OFFICES IN THOSE TERRITORIES?
Portuguese fiscal legislation specifies that companies and residents based offshore cannot profit from certain tax exemptions. These exemptions include the rates applicable to capital gains by non-residents outlined in Article 26 of the tax benefits status.
WHAT CAN I DO TO LEGALISE MY SITUATION?
Anyone with an offshore company or investment in or connected to the Cayman Islands or the Bermudas has until 16th December 2010 to rectify their situation. A new Decree Law in Portugal has been passed that outlines the forms and accompanying documentation required for companies and individuals to rectify and settle their tax situation.
The solutions are straight forward but action must be taken right away, prior to the December deadline. There are various options available, each to suit different scenarios and involving different levels of costs, but these costs are far less than the leaving this matter unresolved.
ARTUR da COSTA BRUNO
___________________
ADVOGADO/LAWYER
Rua Dom Francisco Gomes (Rua Stº António) nº 4 - 2º C -
8000-306 Faro - Portugal
Tel: +351 289 821 727 ? E-mail: CostaBrunoLawyers@sapo.pt
- OWNERSHIP OF REAL ESTATE
OWNERSHIP OF REAL ESTATE
1. What instruments are used to convey fee simple ownership, or other principal form of ownership, of real estate?
In general, fee simple ownership is transferred by public deed signed before a notary, and subsequently registered at the property registry office. The main and most common form to transfer real estate is purchase and sale.
Fee simple ownership may also be transferred by other forms, such as donation or inheritance.
2. How in this jurisdiction is the ownership of real property recorded or searched? Who generally performs the search?
The ownership of real estate is recorded at (i) the Property Registry Office, (ii) the tax authorities and (ii) the Municipality, concerning urban properties. Property Registry Certificates provide evidence of the description and location of the property, as well as confirmation of title, charges, easements, encumbrances and any other rights or responsibilities over the property. Considering that the property registry files are public, any person is entitled to request a Property Registry Certificate at the Property Registry Office.
Tax registry certificates provide confirmation of the registration of the owner of the property with the tax authorities, and also provide the tax value of the property, which is important for determination of tax implications on real state transactions, such as property transfer taxes or municipal taxes, which in some cases may be levied over the tax value of the property. The tax registry certificates are not of public consultation. Therefore, only the registered owner of the property may obtain a certificate from the tax authorities or any person with a power of attorney for such purpose.
Finally, concerning urban constructions, the construction of properties must, in general, be approved by the municipality where the real estate is located and recorded therein. The license of use, issued by the relevant municipality, confirms that the property has been built in accordance with the applicable construction and planning law, and with the approved construction projects. Similarly to tax certificates, municipality files are not public. Therefore, in general, only the owner of the property may obtain certificates concerning the envisaged property.
Usually, real estate searches are conducted by lawyers or by real estate appraisers or consultants.
3. What assurances of ownership are available to purchasers of real property (e.g., title insurance or title opinions)? What is the cost of obtaining such assurances?
The only available assurances to purchasers of property result from the documents referred in number 3 above. There is a legal presumption that the rights definitively registered in the Property Registry are correct, updated and true, as these are public records.
Title opinions may be issued by lawyers (legal opinions) or by real estate consultants, based on the documents mentioned in number 3 above.
The concept of title insurance is not available in Portugal.
4. What are the most common forms of investment vehicles? What are the most common entities employed to own investment real estate in a tax efficient manner?
The most common forms of investment vehicles are public limited companies (designated in Portugal as ?sociedades anónimas? or ?S.A? companies), limited liability companies (designated in Portugal as ?Sociedades por quotas?or ?Lda?) or real estate investment funds. Property may also be purchased by foreign companies or branches of such companies incorporated in Portugal..
The use of each type of vehicle structure will depend on the type of operation at hand. However, property companies when the property is to be resold and real estate investment funds are the most common vehicles used to own investment real estate in a tax efficient manner. These vehicles have certain tax benefits, such as full or partial exemption of property transfer tax upon acquisition, as well as exemptions of municipal property tax under certain conditions and for certain periods, as the case may be.
5. Has this jurisdiction adopted, or is it considering, legislation permitting the creation of real estate investment trusts or similar entities?
This jurisdiction has not adopted and it is not envisaged that it will adopt in the near future legislation permitting the creation of real estate trusts. However, as we have referred in number 4 above, the use of real estate investment funds is common in Portugal.
6. What state or local transfer, stamp or similar taxes are levied generally on sellers or buyers upon the direct transfer of real state?
The direct transfer of real estate is, in general, and unless there is an exemption, subject to the following taxes on the purchaser:
1. Property Transfer Tax - The tax rates are: 5% for rural properties; for urban resident properties the rate is variable from 0% (or 1% if the purpose of acquisition is other than own permanent residence) for taxable amounts under 92.407Euros, to 6% for taxable amounts exceeding 574.323Euros (or 550.836Euros if the purpose of acquisition is other than own permanent residence); 6.5% for all urban non residential premises; and 8% if the purchaser is a tax haven based company. Property Transfer Tax is charged on the basis of the highest of either the purchase price, or the tax value of the property as set by the Tax Authorities
2. Stamp duty, at rate of 0.8% over the transfer price or over the tax value, whichever is higher;
3. Notary fees and registration costs, which in general, do not exceed ??.. Euros.
Sellers are only subject to capital gains tax, when applicable, upon the sale of property.
7. What state or local transfer, stamp or similar taxes are levied generally on sellers or buyers upon the transfer of interests in entities which own real estate?
The transfer of interest in limited liability companies is, in general, subject to capital gains tax, at the rate of 10% for individuals and 25%, accrued of a municipal surcharge that can go up to 1.5%, depending on each municipality. If 75% or more of the share capital of limited liability companies which own real estate is transferred to the same entity, the buyer shall pay IMT over the value of such properties.
The transfer of shares by individuals in SA companies which assets are composed in more than 50% by real estate is subject to capital gains tax at the rate of 10% in case of individuals. Companies that sell shares in other companies which own real estate are also subject, in general, to capital gains tax at the rate of 25%, accrued of a municipal surcharge that can go up to 1.5%, depending on each municipality.
Apart from the case mentioned in the previous paragraph the, the transfer of interests in entities which own real estate is not subject to other taxes.
8. How significant is local regulation and taxation of real state? How significant is the variation of real estate law among political subdivisions of this jurisdiction?
Real estate law is applicable to the whole of the Portuguese territory and only suffers specific variations concerning certain issues such as regulation concerning zoning and planning established in local zoning plans, which depend on the area of the country that they created for. The autonomous regions of Madeira and Azores also have specific applicable legal provisions concerning tax rates.
Taxation of real estate also varies concerning tax rates fixed by local authorities, such as municipal surcharges on corporate income tax, which may range between 0% and 1.5% and municipal property taxes, ranging between 0.2% and 0.8% on the value of the real estate.
9. Must ultimate beneficial owner of entities which own real estate be disclosed as a matter of public deed?
The property registry certificate and the tax certificate contain the identification of the registered owner. In case of the owner being a company, the only information which must be disclosed as public record in the property registry certificate is the identification of the company, but not the name of its shareholders.
ARTUR da COSTA BRUNO
___________________
ADVOGADO/LAWYER
Rua Dom Francisco Gomes (Rua Stº António) nº 4 - 2º C -
8000-306 Faro - Portugal
Tel: +351 289 821 727 ? E-mail: CostaBrunoLawyers@sapo.pt
- TIPS ON PORTUGUESE LAW - WHO SHOULD HAVE A PORTUGUESE WILL?
TIPS ON PORTUGUESE LAW
WHO SHOULD HAVE A PORTUGUESE WILL?
If you own a property or have any assets in Portugal, you should have a Portuguese Will. Not having one can cause all sorts of delays, complications and unecessary expenses when it comes to dealing with the very sensitive and emotional issues of inheritance.
By having a Portuguese Will, one can avoid potential legal conflicts between Portuguese Law and the law of the deceased?s nationality, which can be further complicated if spouses are of different nationality and there?s no clear country where both normally reside. Furthermore, some countries law states that the law of the country where the property is located takes precedence.
If there is no Will, legitimate heirs, in order of presedence are spouse, children (both biological and adopted) and then ascendants (parents). In the absence of any of these, siblings and their descendants up to the 4th generation are considered next of kin, if there are no living heirs of a higher level. After that, everything goes to the State.
It?s often an advantage to have inheritance matters delt with under Portuguese law, as there are no inheritance taxes levied for spouses, descendants or ascendants. This can often be a huge advantage of heirs, mainly from a fiscal perspective.
Portuguese law allows anyone to be included in a Will, not just relatives. The only exemptions are doctors that treated the deceased, their priest, curator, tutor or administrator. Therefore, if one wishes to include a friend in an inheritance, a Will is essential in Portugal, otherwise the estate automatically goes to nearest relatives.
This is particularly relevant to property owners that wish to allow friends or significant others to continue living in a property they own in Portugal. Unless there is a clear Will outlining this, then any prior agreement is not recognised and will be determined by family and matrimonial laws.
There are some exceptions to the law, but Portuguese Law assumes that the legal owners of the property are those named on the registration documents. However, in the case of someone who is not the registered owner of the property but has lived in the property for over 20 years, they might be considered the legal owners of the property, under a law allowing the acquisition of title through the elapsing of time. If there?s evidence to the contrary, this can be contested by the legal owner or heirs.
There are 2 type of Wills in Portugal ? a Public Will and a Closed Will. Public Wills are made in the presence of a public Notary and kept there ina vault. A Closed Will is drawn up privately and signed by the author, but is also subject to review by a public Notary.
The simple and straight forward solution to avoid all these loopholes and legal conundrums is to have a Portuguese Will drawn up by a Portuguese legal professional. It?s important that the Will is based on current Portuguese legislation so it?s does the job it?s designed for ? facilitating the inheritance process during an often very painful time for relatives and not causing any unecessary misunderstanding, delays or even painful confrontations between loved ones.
ARTUR da COSTA BRUNO
___________________
ADVOGADO/LAWYER
Rua Dom Francisco Gomes (Rua Stº António) nº 4 - 2º C -
8000-306 Faro - Portugal
Tel: +351 289 821 727 ? E-mail: CostaBrunoLawyers@sapo.pt
- KEEP YOUR WILL UP TO DATE
As a foreign national living in Portugal you should have a Portuguese Will - and remember to keep it updated.
When should I amend my Will?
There are many circumstances that can have an impact on your Will. Here are a few examples:
- If you marry
- If you have children
- If you get divorced
- If you have a change in financial circumstances (for richer or for poorer!)
How does marriage change my Will?
If you are a British national, a subsequent marriage will invalidate your Will completely. If you don`t execute a new Will, you`ll be considered as having died intestate (i.e. without a Will) and the rules of intestate succession will apply to your heirs. If you have married after executing your Will, it is crucial that you prepare a new Will.
How does having children affect my Will?
This does not automatically affect the validity of your existing Will, but it is important to review your Will if you wish to provide for your children.
How does divorce impact on my Will?
A divorce has the effect of invalidating any disposition you have made in favour of your former spouse. For example, if you have appointed your former spouse as an executor of your Will, this appointment will be nullified so you will need to consider appointing a new executor to manage affairs upon your death. If you have made any gifts to your former spouse in your Will, these gifts will be nullified and you may fall into a situation of intestacy. You should therefore review your Will to ensure that no intestacy arises.
How does a change in financial circumstances affect my Will?
Whether your economic situation improves or you find yourself suffering financial losses, it is always advisable to review the terms of your Will. It might be necessary to take tax planning advice and act accordingly, or change the beneficiaries of your Will to reflect your current economic situation.
Your Will should therefore always accompany the changes you experience in your life.
WHICH LAW APPLIES TO MY WILL?
With increasing globalization, inheritance laws have become increasingly complex. When they involve more than one country, this can raise many conflicting issues, particularly in relation to which country`s law will be applied to your Estate.
As a result, EU member states have been looking to adopt cross-border succession regulations to regulate these situations.
What is the current position in Portugal?
In Portugal the law that applies to a person`s succession is the law of nationality. This means that, for example, if you`re a British national, born in London and living in Portugal, it is the law of England and Wales that will apply to your succession in Portugal. As a result, you are able to dispose of your assets freely by Will and aren`t subject to Portuguese rules of forced inheritance to your heirs.
What are the proposals under the EU Regulations under discussion?
The proposed new legislation, which is known as Brussels IV, generally states the following rules:
- a person can choose the jurisdiction and succession law to apply to their Estate upon;
- if no election is made, then the succession is determined by his place of habitual residence at the time of death.
There are countries that have not opted in, such as Britain and Ireland, but the new EU regulation allows them to do so in future.
When will these proposals come into force?
It is not known when it will be finalized as the Brussels IV Regulation is still under discussion, let alone when it will come into force in EU countries. Therefore, for inheritance issues arising in Portugal, it is the law of a person`s nationality that will apply.
ARTUR da COSTA BRUNO
___________________
ADVOGADO/LAWYER
Rua Dom Francisco Gomes (Rua Stº António) nº 4 - 2º C -
8000-306 Faro - Portugal
Tel: +351 289 821 727 ? E-mail: costabrunolawyers@sapo.pt
- EUROPEAN ENFORCEMENT ORDER FOR UNCONTESTED CLAIMS
European enforcement order for uncontested claims
The Regulation creates a European enforcement order for uncontested * claims *. Thanks to the introduction of minimum standards, the instrument allows the free movement of judgments *, out-of-court settlements or authentic instruments * concerning uncontested claims in all the Member States. It is no longer necessary to use an intermediate procedure in the Member State of enforcement * prior to recognition and enforcement.
Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims [see amending acts].
The Regulation creates a European enforcement order for uncontested claims. It lays down minimum standards to ensure that judgments, court settlements and authentic instruments on uncontested claims can circulate freely. This entails the abolition of exequatur, i.e. the automatic recognition and enforcement, without any intermediate proceedings or grounds for refusal of enforcement, of judgments handed down in another Member State.
Scope
The Regulation applies in civil and commercial matters. It does not, in particular, cover revenue, customs or administrative matters. It is applicable in all Member States with the exception of Denmark.
European enforcement order
A judgment on an uncontested claim is certified as a European enforcement order by the Member State of origin * in accordance with certain conditions. Certification is carried out by means of the standard form. The certification may apply to only parts of the judgment, in which case the order will be known as "partial European enforcement order".
A judgment that includes an enforceable decision on the amount of costs related to the court proceedings may also be certified with regard to the costs unless the debtor has specifically objected to his obligation to bear such costs. The certificate can also be rectified if there is a discrepancy between the judgment and the certificate, or withdrawn where it was clearly wrongly granted. Nor is there any appeal against the judgment relating to certification. The certificate takes effect only within the limits of the enforceability of the judgment.
Minimum standards
The court proceedings in the Member State of origin must meet certain procedural requirements for a judgment on an uncontested claim to be certified as a European enforcement order.
The Regulation lays down minimum standards with regard to the service of documents (the document instituting proceedings and, where applicable, the summons to a court hearing) to ensure that the rights of the defence are respected. Only the document service methods listed in the Regulation are allowed if the judgment is to be certified as a European enforcement order.
Furthermore, the document instituting proceedings must give details of:
· the claim (personal details of parties, amount of the claim, whether or not interest is incurred and for what period, etc.);
· the procedural arrangements required for contesting the claim (deadline for contesting the claim, consequences of failing to object, etc.).
The Regulation allows non-compliance with these requirements to be remedied, subject to certain conditions. For a judgment to be certified as a European enforcement order, the Member State of origin must provide for review in exceptional cases.
Enforcement
Enforcement procedures are governed by the law of the Member State of enforcement. The creditor must supply the authorities responsible for enforcement in the enforcing Member State with:
· a copy of the judgment;
· a copy of the European enforcement order certificate;
· where necessary, a transcription of the European enforcement order certificate or a translation thereof into the official language of the Member State of enforcement or into another language accepted by the Member State of enforcement.
No security, bond or deposit can be required of creditors on the ground either that they are foreign nationals or are not domiciled or resident in the Member State of enforcement.
The competent court in the enforcing Member State may, subject to certain conditions, refuse to enforce a judgment if it is irreconcilable with an earlier judgment given in any Member State or in a third country. In certain cases, it can also stay or limit enforcement.
Final and general provisions
All the information needed to apply the Regulation will be communicated by the Member States to the Commission, which will publish it. In addition, in order to facilitate access to enforcement procedures and related information, the Member States undertake to provide the general public and professional circles with relevant information within the framework of the European Judicial Network in civil and commercial matters.
Creditors remain free to seek recognition and enforcement of a judgment under Regulation (EC) No 44/2001. Moreover, this Regulation does not prejudice the application of Regulation (EC) No 1348/2000.
The Regulation is applicable from 21 October 2005. Following the accession of the new Member States on 1 May 2004, the annexes to the Regulation were replaced by Regulation (EC) No 1869/2005 so as to adapt the standard forms for use in those Member States.
· Judgment: any judgment given by a court or tribunal of a Member State, whatever the judgment may be called.
· Claim: a claim for payment of a specific sum of money that has fallen due or for which the due date is indicated in the judgment.
· Uncontested: the debtor has not objected to the claim in the course of court proceedings or has not appeared in court or has expressly agreed that the claim exists and is justified in the course of court proceedings, including by means of a settlement or in an authentic instrument.
· Authentic instrument: a document formally drawn up as an authentic instrument or an arrangement relating to maintenance obligations.
· Member State of origin: the Member State in which the judgment to be certified as a European enforcement order has been given.
· Member State of enforcement: the Member State in which enforcement of the judgment certified as a European enforcement order is sought.
Act
Entry into force - Date of expiry
Deadline for transposition in the Member States
Official Journal
Regulation (EC) No 805/2004
21.01.2005
-
OJ L 143, 30.04.2004
Amending act(s)
Entry into force
Deadline for transposition in the Member States
Official Journal
Regulation (EC) No 1869/2005
24.11.2005
-
OJ L 300, 17.11.2005
ARTUR da COSTA BRUNO
___________________
ADVOGADO/LAWYER
Rua Dom Francisco Gomes (Rua Stº António) nº 4 - 2º C -
8000-306 Faro - Portugal
Tel: +351 289 821 727 ? E-mail: CostaBrunoLawyers@sapo.pt
- ADVERSE POSSESSION - «USUCAPIÃO»: Getting Ownership of Property
Adverse Possession - «Usucapião»:
Getting Ownership of Property
Under the provisions of article 1287 of the Portuguese Civil Code, the possession of property or other rights of enjoyment, maintained for a certain period of time (which can reach up to 20 years), gives the possessor the entitlement to the exercise of which corresponds to its action: this is what is known as ?adverse possession?.
Despite the modern era of contracts to perfect ownership in property, ?adverse possession? is still a firmly rooted, law exception to acquiring property. Let?s say that you inherit a house from your aunt who lived a few years of his life in Portugal. Adjacent to his house is a partial lot. While you were growing up, she used this lot and everyone operated under the assumption that she owned the lot. After her estate is probated, you decide to move into the house and continue using the lot as an extension of your property. In fact, you decide to put up a nice fence and a concrete terrace area. Several years pass, when finally your neighbour stops by to tell you they had their property surveyed and learned they have legal ownership of the lot. But the question is, do they really? Because of your open use of the property, you may actually have trumped their contractual right to possession with your equitable right of possession. This equitable right is referred to as ?adverse possession.?
If the Owner:
The law provided a method for someone to obtain title to land through use. A typical statute allows a person to get title to land from the actual owner simply by using the land, out in the open for all to see.
The theory is that, by not disputing your neighbour?s use of your property, you, as the actual owner have abandoned your rights to the property. There are several elements needed for adverse possession to result in title and subsequent registration:
- The length of time required for adverse possession in title varies - it could be as short as fifteen years, if the ownership is in good faith, or could run for twenty years, if the ownership is in bad faith.
- The possession must be open for all to see.
- The possession must be hostile to the actual owner of the land.
To gain title to land through adverse possession requires strict compliance with the law, but can have dramatic impact upon land ownership rights.
An encroachment could result in title to your property being transferred to an adverse possessor. Under these circumstances, you might have to bring a lawsuit for trespass in order to prevent your neighbour from getting title to your land through adverse possession.
If you own land, it is important that you do not "sleep on your rights" since you could lose ownership of the land.
If you have possession:
There are five basic requirements you must satisfy to make a claim of adverse possession:
1. Actual Possession - You must have actual, physical control over the property.
2. Open and Notorious - Your use and possession of the land must be so visible and apparent that it gives notice to the legal owner that someone may make claim to it.
3. Exclusive Possession - You cannot occupy the land jointly with the titled owner or share possession in common with the public
4. Hostile Possession - Your possession must be hostile to the title owner´s interest in the property. The word ?hostile? in an adverse possession claim does not mean showing ill will or that you are an enemy of the person holding the legal title. Rather, it means that you possess the property as an owner and hold it against all other claims to the land.
5. Continuous and Uninterrupted - All elements of adverse possession must be met at all times through a set period of time. Occasional activity combined with long gaps in that activity fails the test of continuous possession.
Most property, including vacation property under some circumstances, can be subject to a claim of adverse possession. However, it should be noted that public land is exempt from adverse possession and that some rights, as building non apparent easements and rights of use and habitation, cannot be acquired by adverse possession.
So bear this in mind before you give your neighbour a ?patio? windfall.
ARTUR da COSTA BRUNO
___________________
ADVOGADO/LAWYER
Rua Dom Francisco Gomes (Rua Stº António) nº 4 - 2º C -
8000-306 Faro - Portugal
Tel: +351 289 821 727 ? E-mail: costabrunolawyers@sapo.pt
Web: www.costabrunolawyers.com