How a Will Works: The Types and When It's Worth It

Quick answer: A testamento (will) is the act by which a legally capable person decides what will become of their assets after death. The Civil Code provides for three ordinary forms: público (public), cerrado (closed), and particular (private). Anyone with children, living parents, or a spouse may only freely dispose of half of their assets, because the other half — the legítima (the reserved share) — belongs by law to the herdeiros necessários (forced heirs).

A family comes to the firm after the father passes away, convinced that the will he left behind would settle everything. The document existed, it was registered at a notary's office, and even so the division of assets stalled. The reason is a common one: the testator had left the entire house to a single child, without realizing that half of that estate already belonged, by law, to the group of heirs as a whole. The will was valid, but it could only take effect over the portion the law left free to dispose of.

This is the most common misunderstanding about wills in Brazil. Many people imagine that signing a will grants full freedom to divide their assets however they wish, when in fact the law reserves a good part of the estate for a specific group of relatives. Understanding what a will can and cannot do is what separates planning that works from a document that breeds conflict.

This article explains what a will is, what the three types provided for by law are, what you can actually dispose of, and where it fits within estate planning alongside instruments such as the holding company.

What a Will Is

A will is the act by which a person disposes, for after their death, of their assets or part of them, and also of non-property matters, such as acknowledging a child or appointing a guardian. The Civil Code (Law 10,406/2002), in Article 1,857, guarantees every legally capable person the right to dispose by will, respecting the legítima (reserved share) of the forced heirs, a subject this article details further on.

Two features define the institute. The first is that it is a strictly personal act (ato personalíssimo): no one makes a will by proxy, the expression of intent must come from the testator themselves. The second is that a will is essentially revocable. Article 1,858 of the Civil Code makes clear that the testator may change or revoke what they have provided at any time, as many times as they wish, without having to justify it. A will binds no one during life: it takes effect only upon death, and until then it can be redone in full.

Legally capable persons may make a will, and so may those over sixteen years of age, under Article 1,860 of the Civil Code. Capacity is assessed at the moment the act is drawn up, not afterward: someone who has already lost their discernment does not make a valid will.

The Three Types of Will

The Civil Code addresses, in Article 1,862, three ordinary forms of will: the público (public), the cerrado (closed), and the particular (private). All three are valid; what changes is how it is made, the degree of secrecy, and the risk involved. The choice between them is no minor detail: it is what determines whether the document will withstand a challenge down the road.

Public Will (Testamento Público)

The public will is drawn up by the tabelião (notary public) in the notary office's register (livro de notas), based on the testator's declarations, and read aloud in the presence of two witnesses, under Article 1,864 of the Civil Code. It is the safest form against defects of form, because the one who drafts it is the notary, a professional who knows the formalities. The content is not secret, since it is recorded at the notary's office, but in exchange it is rarely voided for a procedural error. For those who cannot read or write, or have difficulty doing so, the public form is usually the appropriate path.

Closed Will (Testamento Cerrado)

In the closed will, provided for in Article 1,868 of the Civil Code, the testator themselves writes the document (or asks someone to write it for them) and delivers it sealed to the notary, who draws up a certificate of approval (auto de aprovação) before two witnesses without learning its content. The advantage is absolute secrecy: no one, not even the notary, knows what is written until it is opened after death. The disadvantage is the risk. Because the document stays in the testator's keeping, a loss, a breaking of the seal, or damage to the paper can invalidate everything.

Private Will (Testamento Particular)

The private will is written by the testator themselves, by hand or by mechanical means, and read before at least three witnesses who also sign it, under Article 1,876 of the Civil Code. It is the simplest and cheapest form to make, because it does not require a notary's office at the time it is drawn up. The price of that simplicity shows up later: after death, the private will must be confirmed in court, with the witnesses being heard, and if they have died or cannot be located, its validation is compromised.

The table below summarizes the differences that weigh most heavily when choosing.

What You Can and Cannot Leave in a Will

Here is the point that generates the most conflict. Brazilian law does not grant full freedom to dispose of assets by will when certain relatives are alive. Article 1,845 of the Civil Code defines the so-called herdeiros necessários (forced heirs): the descendants (children, grandchildren), the ascendants (parents, grandparents), and the spouse. If any of them exists, the legítima comes into play.

The legítima is the half of the estate's assets that belongs, by full right, to the forced heirs. Article 1,846 of the Civil Code reserves this half for them, and Article 1,789 completes the rule: when there are forced heirs, the testator may only dispose of half of the estate. That free half is the parte disponível (the disposable portion). In practice, someone with children may direct by will, at most, fifty percent of their assets to whomever they wish — a grandchild, an institution, a friend. The other half necessarily goes to the forced heirs, in the proportion the law determines.

When there are no forced heirs, the logic is reversed. A person with no descendants, no living ascendants, and no spouse may dispose of one hundred percent of their assets by will, to whomever they see fit. It is in this scenario that the will reaches its greatest scope, because nothing limits the testator's wishes.

There is also deserdação (disinheritance), which is the removal of a forced heir from their legítima. But it does not work as a free choice: it is allowed only in the exhaustive circumstances provided for by law, it must be declared expressly in the will, and it depends on proof of the cause. Wanting to exclude a child is not enough; one of the situations the law authorizes must actually exist. This is why disinheritance is the exception, not the rule.

Where a Will Fits Within Estate Planning

A will is one piece of estate planning, not the entire plan. It handles the destination of the disposable portion and specific expressions of intent well, but it does not organize the management of assets during life, nor does it, on its own, avoid inventário (probate). For families with a business, real estate, and ownership stakes in companies, a will usually works together with other instruments.

The main one is the holding patrimonial (family holding company). While the will provides for what happens after death, the holding company organizes the estate while still alive, concentrating assets in a legal entity whose shares (quotas) can be gifted to the heirs with reserved usufruto (usufruct). They are complementary instruments: the holding company takes care of the structure and governance of the estate, and the will takes care of the specific wishes that the structure does not reach. Using one does not remove the need to think about the other.

This is exactly the combination that WF Advogados' POPP 65+ program structures, designing each family's succession arrangement with legal certainty, taking into account the will, the holding company, and the tax burden involved. The goal is for the transition of the estate to happen with predictability, without the family discovering the problems only at probate.

A Will Does Not Exempt You From the Inheritance Tax

A frequent misconception is to imagine that having a will ready eliminates the tax or does away with probate. It does not. The transfer of assets, with or without a will, is the triggering event for the ITCMD, the state tax on inheritance and gifts. Whoever inherits through a will pays the tax just the same as whoever inherits by the legal order, and its payment remains a condition for transferring the assets at the real estate registry and completing the division.

To understand how this tax is calculated, who pays it, and what changes with progressivity from 2026, it is worth reading what the ITCMD is. The point to keep in mind is that a will and the tax are distinct things: one defines to whom the estate goes, the other applies to the transfer either way. Planning your succession means taking care of both at the same time.

How to Make a Public Will, Step by Step

For those who choose the public form, the safest one, the path is procedural and fairly straightforward:

1. Gather your personal documents and define, clearly, what you intend to dispose of, respecting the disposable portion when there are forced heirs. 2. Go to a notary's office. It does not have to be the notary in your neighborhood or your state; any notary's office can draw up the will. 3. Declare your dispositions to the notary, who puts everything on record and drafts the will in the register, with the appropriate technical language. 4. Attend the reading of the will aloud, done by the notary in the presence of two witnesses who are not beneficiaries. 5. Sign the document, together with the witnesses and the notary, closing the act. 6. Confirm the registration in the central notarial registry of wills, which makes it possible to locate the document in the future and prevents it from "disappearing" at the moment it is needed.

A lawyer is not mandatory for the public will, since the notary conducts the act. Even so, legal guidance before making the will is what ensures that the dispositions respect the legítima and withstand a future challenge.

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This content is for informational purposes only and does not replace individual legal consultation. Each case has particularities that require specific analysis.

Dr. Wendel Ferreira Lopes — Attorney, OAB/MG nº 18.881. Founding partner of WF Advogados, practicing in Tax, Banking, and Estate/Succession Law since 1999. Uberlândia, Brazil.

Frequently Asked Questions

Who can make a will?

Any legally capable person over sixteen years of age, under Article 1,860 of the Civil Code. Capacity is assessed at the moment the will is made, so someone who has already lost their discernment cannot make a valid will.

Does making a will take away my children's inheritance?

No. When there are forced heirs (descendants, ascendants, or a spouse), the law reserves the legítima for them, which is half of the estate's assets. The will may only freely dispose of the other half, the disposable portion.

What is the difference between a public, closed, and private will?

The public will is drawn up by the notary and is the safest against defects of form. The closed will is written by the testator and delivered sealed to the notary's office, with total secrecy but a risk of loss. The private will does not require a notary's office when it is made, requires three witnesses, and must be confirmed in court after death.

Does a will require a lawyer?

It is not mandatory, especially for the public will, in which the notary conducts the act. But prior legal guidance is what ensures the dispositions respect the legítima and leave no room for challenge, which tends to make a difference with complex estates.

Can a will be changed or canceled later?

Yes. Article 1,858 of the Civil Code guarantees that the testator may revoke or change the will at any time, as many times as they wish, without having to give an explanation. The will takes effect only upon death, and until then it can be redone entirely.

Does a will avoid probate?

No. Even with a will, it is necessary to open inventário (probate) or arrolamento (a simplified probate procedure) to formalize the transfer of assets and pay the tax. The will defines the deceased's wishes, but it does not replace the division procedure.

Does a will pay tax?

An inheritance received through a will pays the ITCMD, the state transfer tax, the same way as an inheritance received by the legal order. The will neither exempts nor reduces this tax on its own. It is worth understanding how the ITCMD works.

What is the disposable portion?

It is the fraction of the estate that the testator may freely direct. When there are forced heirs, it corresponds to half of the assets, because the other half is the legítima. When there are no forced heirs, the testator may dispose of the whole.

What is the difference between a will and a family holding company?

A will provides for the estate for after death. A holding company organizes the assets while still alive, in a legal entity, allowing shares to be gifted with usufruct and governance to be defined. They are complementary instruments, and good planning usually uses both in an integrated way.

What is a testamento vital (living will)? Is it the same thing?

No. The testamento vital (living will), or diretiva antecipada de vontade (advance healthcare directive), deals with decisions about medical treatment in case the person is unable to express their wishes in the future. It does not dispose of assets or an inheritance. It is a distinct instrument from the will this article addresses.

Can I disinherit an heir in the will?

Only in the exhaustive circumstances provided for by law, and by an express declaration of the cause in the will, subject to proof. Disinheritance is the exception, not a free choice. Without one of these situations, the forced heir keeps the right to the legítima.

How much does it cost to make a will?

The cost of the public will varies according to the schedule of emolumentos (notary fees) of the state where it is drawn up, an amount set by the notary office's local law, not by the lawyer. The private will tends to be cheaper to make, but it can generate cost and wear and tear in the later court confirmation.