Public Will: Requirements, Heirs, and Revocation

Context note: This content describes Brazilian notary law.

Em resumo

• The public will (testamento público) is a notary deed that records a person's last will regarding the distribution of their assets and estate directives for after their death Lei nº 10.406/2002 — Código Civil, art. 215.
• The drafting takes place at a notary public office (tabelionato de notas) before the notary public or legal deputy and requires the presence of two disinterested witnesses.
• The law guarantees half of the estate to necessary heirs (herdeiros necessários, the compulsory share or legítima), allowing the testator to freely dispose of the remaining 50% of their estate.
• A public will can be revoked or amended at any time by means of a new public deed executed at a notary office.

O que é um testamento público e quem pode fazer esse ato em cartório?

A public will (testamento público) is the modality of will dictated by the testator and written by a notary public (tabelião de notas) in their notary book Lei nº 8.935/1994, art. 6º. It guarantees publicity, authenticity, and legal certainty to estate planning under Lei nº 8.935/1994 (Notarial and Registration Services Law), art. 1º Lei nº 8.935/1994, art. 1º. Despite being called public, the contents of the deed remain confidential while the testator is alive. Public consultation regarding the existence of the act is permitted only via certificate after death.

You may consult the guidelines of national legislation on legal transactions directly on the official portal of the Presidency of the Republic through the Código Civil no Planalto (Civil Code on Planalto).

Any natural person over 16 years of age, in full possession of their mental faculties, has legal capacity to execute a public will. Elderly persons, ill individuals, or those with visual impairments may also opt for a public will. In such cases, the notary reading the deed aloud and observing legal formalities guarantee the correct expression of intent.

To understand the basic concepts of this instrument before starting your draft, also read our guide on public will.

Quais são os requisitos de validade para formalizar um testamento público?

The validity of a public will requires strict compliance with the formalities set forth in civil legislation Lei nº 10.406/2002 — Código Civil, art. 104. The act must be drafted in a notary book by a notary public or their legal deputy at the notary public office (tabelionato de notas) pursuant to Lei nº 8.935/1994, art. 6º Lei nº 8.935/1994, art. 6º.

The notary act requires the simultaneous presence of two instrumental witnesses. These witnesses cannot be beneficiaries of the will nor relatives of the testator or instituted heirs. After drafting the text, the notary performs a public reading of the deed in the presence of the testator and both witnesses.

Next, all participants sign the notary book. If the testator cannot sign, one of the witnesses will sign on their behalf (a rogo). Failure to observe these steps causes the nullity of the act under Lei nº 10.406/2002 (Código Civil - Brazilian Civil Code), art. 166 Lei nº 10.406/2002 — Código Civil, art. 166. All information regarding the executed act is reported to the Central Notarial de Serviços Eletrônicos Compartilhados (CENSEC - Notarial Center for Shared Electronic Services), managed by the Conselho Nacional de Justiça (CNJ - National Council of Justice) pursuant to Provimento CNJ nº 149/2023 Provimento CNJ nº 149/2023, Livro II.

Posso deixar todos os meus bens para apenas uma pessoa no testamento público?

You cannot leave your entire estate to a single person if you have necessary heirs (herdeiros necessários). Brazilian legislation divides the inheritance into two parts: the statutory compulsory share (legítima) and the disposable share (quota disponível). The compulsory share represents 50% of all assets and mandatory belongs to the necessary heirs.

Necessary heirs are descendants (children, grandchildren), ascendants (parents, grandparents), and the surviving spouse or common-law partner (companheiro in a stable union). If you have any of these living relatives, your free disposition is limited to the remaining half of the estate (50%).

If you do not have any living necessary heirs, the law grants total freedom. In this situation, the public will may designate 100% of the assets to a single person, whether a collateral relative (such as a sibling or nephew/niece) or a person with no family tie.

Como funciona o mapeamento de herdeiros e a divisão da legítima no testamento público?

Heir mapping consists of the exact identification of relatives and spouses to define the testator's order of hereditary succession. Prior to drafting the public will, the notary public examines the family structure. This step prevents infringement upon the statutory reserve of the compulsory share (legítima).

To calculate the disposable portion, the net worth of the individual is evaluated. Debts existing at the time of succession are subtracted. From the resulting net value, half constitutes the non-disposable compulsory share and half forms the disposable share.

In the public will, the testator specifies how they wish to distribute their disposable share. They may favor one of the necessary heirs with the disposable portion or transfer that fraction to third parties. If the compulsory share is infringed upon, clauses that exceed the legal limit will be reduced during judicial or extrajudicial probate partitioning under Lei nº 10.406/2002 (Código Civil), art. 1º.784 Lei nº 10.406/2002 — Código Civil, art. 1º.784.

To structure your estate during lifetime by combining different notary instruments, also read our material on lifetime gift of assets and the use of a family holding company.

Como fazer a revogação ou alteração de um testamento público já lavrado?

The public will is an essentially revocable act. The testator retains full freedom to alter or cancel their declaration of intent at any time while retaining civil capacity. There is no need for consent from heirs named in the prior act.

Revoking a public will requires executing a new public deed at a notary public office. The new act may be total or partial. Total revocation renders the entire prior document void. Partial revocation alters only specific clauses, keeping the remaining provisions valid.

A subsequent public will revokes the prior one to the extent it is incompatible with the new declaration. If the new document is silent on points of the prior one that do not conflict, compatible rules remain in effect. The notary notifies the CENSEC central registry to update the record.

Checklist de documentos

To execute a public will at the notary public office (tabelionato de notas), submit the following documentation:

• [ ] Official identification document of the testator (valid RG or driver's license - CNH).
• [ ] Taxpayer Identification Number (CPF) of the testator.
• [ ] Updated birth or marriage certificate of the testator.
• [ ] Recent proof of residence of the testator.
• [ ] Identification documents (RG and CPF) of the two instrumental witnesses.
• [ ] Complete list of assets with property title registry certificates (matrículas) and vehicle registration documents.
• [ ] Complete personal details (qualificação) of all necessary heirs and designated legatees.

Na prática

Caso 1: Division of disposable share favoring one child

A testator with two children wished to benefit one of them, who cared for his health daily. He appeared at the notary public office to execute his public will. The analysis of the compulsory share confirmed that 50% of the assets mandatorily belonged to both children in equal parts. The notary structured the deed allocating 100% of the disposable share (50% of total estate) entirely to the caregiver child. Upon death, the caregiver child received 75% of the total estate (25% from compulsory share plus 50% from disposable share), while the other child received 25% from the compulsory share, respecting all statutory limits.

Caso 2: Revocation of prior act due to changing family context

A testatrix executed a public will in 2018 leaving the disposable portion of her real estate property to a nephew. Years later, she had a granddaughter and decided to alter her estate distribution. In 2025, she returned to the notary public office and executed a new notary deed expressly revoking the 2018 act. The new public will designated the disposable share to the granddaughter. Upon opening of succession, the second deed prevailed entirely as the valid final expression of last will.

O que costuma dar errado

• Naming witnesses prohibited by law: Including relatives of the testator, heirs, or legatees as instrumental witnesses renders the deed invalid. How to avoid: Choose two witnesses with no family relationship and no financial interest in the will.
• Encroaching upon the compulsory share of necessary heirs: Disposing of more than 50% of total assets in the public will when children, parents, or a spouse/partner exist. How to avoid: Request the notary public to perform a prior calculation of the disposable share before drafting the act.
• Attempting to alter the act via handwritten private document: Writing a handwritten letter attempting to revoke a public will. How to avoid: Always perform revocation or amendment by executing a new public deed at a notary public office.
• Omitting full qualification of legatees: Identifying beneficiaries imprecisely in the document, causing ambiguity during probate. How to avoid: Provide full name, CPF, and qualification details of all persons named in the deed.

Base legal

• Lei nº 10.406/2002 (Código Civil - Civil Code), art. 1º.784 — Establishes the opening of succession and the immediate transmission of the estate Lei nº 10.406/2002 — Código Civil, art. 1º.784.
• Lei nº 10.406/2002 (Código Civil - Civil Code), art. 215 — Defines that a public deed executed at a notary office carries public faith and provides full proof Lei nº 10.406/2002 — Código Civil, art. 215.
• Lei nº 10.406/2002 (Código Civil - Civil Code), art. 104 — Addresses validity requirements for legal transactions under Brazilian civil law Lei nº 10.406/2002 — Código Civil, art. 104.
• Lei nº 10.406/2002 (Código Civil - Civil Code), art. 166 — Establishes grounds for nullity of legal transactions executed in non-compliance with the law Lei nº 10.406/2002 — Código Civil, art. 166.
• Lei nº 8.935/1994, art. 1º — Regulates notary and registration services to guarantee authenticity, security, and effectiveness Lei nº 8.935/1994, art. 1º.
• Lei nº 8.935/1994, art. 6º — Defines the exclusive powers of notaries public (tabeliães de notas) Lei nº 8.935/1994, art. 6º.
• Provimento CNJ nº 149/2023, Livro II — Regulates rules governing notary services and submission of data to the central registry of wills Provimento CNJ nº 149/2023, Livro II.
• Normative Note: The rules regarding public will formalities and protection of the compulsory share (legítima) are set forth in arts. 1,846 and 1,864 of the Brazilian Civil Code (Código Civil).

Rodapé editorial

Notary Team: 5º Tabelionato de Notas do Recife

Legal Review: Conducted on August 25, 2026, based on current Brazilian federal legislation.

Version: 1.0 PEAN

Boilerplate / Notice: Informational content produced based on official normative sources of the Brazilian legal system. This material is intended to guide citizens and reduce information asymmetry. It does not replace formal notary qualification performed directly at a notary public office (tabelionato de notas) for concrete cases.

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