“Inheritances: houses, businesses, divisions and disputes” (with José Carlos Soares Machado)

«“But when conflicts arise within families, many end up in the courts, and that is where another structural problem emerges. Lawyer José Carlos Soares Machado, Partner at SRS Legal, considers that a large part of the difficulties does not stem from the law itself, but from the way the system operates. “A great deal does indeed go wrong,” he admits. But he adds that “much of what goes wrong in this area is primarily due to the malfunctioning of the justice system”.

One of the clearest examples is the probate process, the procedure that identifies the assets of the estate and organises their distribution. “We have probate cases that have been ongoing for more than ten years without progress,” he states. Part of the difficulty lies in the number of parties involved. Unlike many legal disputes, which involve two parties, an estate may involve dozens of interested parties. “A probate case does not have two parties. It may have three, four, five, ten, twenty. It may have a hundred parties,” the lawyer explains. “Each has their own individual interest.”

At the end of September last year, the courts were dealing with nearly 32,000 pending inheritance disputes, according to data from the Public Prosecution Service provided to Público. This mosaic of interests means that some heirs are eager to resolve the matter, while others prefer to prolong it, whether for strategic reasons, resentment, or simple lack of agreement. The economic consequences are particularly visible in real estate, which often remains unused or without maintenance for years. “No bank lends money to an estate,” observes Soares Machado, which makes renovations or investment in inherited assets more difficult. And not only that.

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Arithmetical equality can create power structures that are difficult to manage, particularly where there are strategic disagreements between heirs. The risk increases over generations. While siblings share common experiences and references, cousins tend to have weaker family ties. “The transition from the second to the third generation is often the most critical,” notes Dias da Cunha. Despite the economic importance of the issue, estate planning remains relatively uncommon in Portugal. According to José Carlos Soares Machado, most families simply follow what is set out in the law, making limited use of instruments such as wills or estate planning structures. “People usually follow what is laid down in the law,” he says.

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For lawyer José Carlos Soares Machado, the problem does not necessarily lie in the absence of legal instruments, but in the functioning of the system. “I strongly oppose the idea that, whenever something goes wrong in a particular case, we should change the law,” he states. “Often, what is at stake is the way processes operate and the slowness of the justice system.”»