Heritage. Government can already create process to unlock real estate sale

Fhi published this monday, in Journal of the Republic, the law of the Assembly of the Republic authorising the Government to approve the Legal Regime of the Special Process of Sale of Immovable Thing integrated in Individual Heritage and the Legal Regime of Successive Arbitration determined by the author of the succession. 

In practice, from here on, the government can create a special process of selling the individual properties and amend the Civil Code and the Civil Procedure Code, now having 180 days to do so.

This authorisation, refer to, allows the Government “to create and regulate special proceedings of an urgent nature for the sale of properties integrated into an indivisive inheritance, which allows any heir, the average spouse or the executor with sharing powers to request their disposal, providing that it may be established autonomously or pending inventory“. 

I would like to remind you that a month ago, the Government's diploma for unlock the sale of property in undivided inheritances at the request of a single heir was approved in Parliament, in a final vote overall, by PSD, CDS-PP, PS, IL and JPP.

Arriga and PAN abstained, while the CFP, BE and Livre voted against.

What's gonna change?

The new rules regulate the special cases of an urgent nature of the sale of real estate that are part of an indivisive inheritance, in cases where there is no agreement between heirs regarding a sale.

The diploma provides that the new scheme applies “to all open and unshared inheritances” at the date on which the diploma enters into force.

At the suggestion of the PSD, which has seen several proposals for amendments approved in the specialty, the household is excluded from the special process of selling the properties, “unless express consent” of the widower or widower, and this guarantee is extended also to the de facto unions.

The “insolvency” inheritances are also not covered by the special sale procedure, and not only, as provided for in the original government proposal, situations with “indivision convention” or where “the right to share” could not be exercised.

The diploma creates the figure of an executor with sharing powers, which allows the centralization of a third “powers of administration, liquidation and sharing of inheritance”, with the aim of making the succession process faster by removing from the orbit of the heirs the impulse for sharing and defining the terms of sharing, as explained by the Government in the introduction of the law.

Another novelty is the surrender of the administration of the inheritance and of the marriage-head functions “to anyone else”, provided that the decision is taken by “simple majority” among the heirs, except “when the marriage-head is the surviving spouse, and without prejudice to cases where there is an executor with sharing powers”.

Along with the executive diploma, in general, the parliament had also approved in early June a draft Liberal Initiative to establish this possibility of defining the head of marriage by most inheritance parts – as it was formally accepted in the specialty by the PSD.

Also on the proposal of the PSD, the final version authorizes the Government to define the system of the figure of the executor, “in particular, the eligibility regime and the exercise of office”.

The legislation also states that the right to share the inheritance cannot be exercised if there is consent to an insemination ‘post mortem’ for “the three years following the opening of the succession or until the full birth and life of the unborn child, pending the completion of the insemination procedures permitted under the law”.

The new rules were adopted in general on June 3, as part of a legislative package with which the government intends to increase the supply of houses for sale or lease in a context of housing crisis.

During the discussion that preceded the special vote, Social Democratic MEP Paulo Marcelo placed 485 thousand vacant family housing. Regarding the rustic buildings, he estimated the existence “of 3.4 million paralyzed, without a defined owner, which leads to these lands not being treated, not being cleaned”, making them conducive to fires.