Under the terms of article 1082 of the CPC, the inventory process fulfills, among others, the following functions: a) To end the hereditary communion and proceed to the division of assets; b) To relate the assets that constitute the object of succession and serve as a basis for the eventual liquidation of the inheritance, whenever there is no need to divide the inheritance; c) To divide assets as a result of the justification of absence; d) To divide common assets of the couple.

There are situations in which the inventory process is of exclusive or imperative competence of the court, defined by article 1083, No. 1 CPC, namely: a) In cases where the succession law imposes the beneficiary acceptance, because the Public Prosecutor considers that, being interested parties incapable or equivalent, the protection of their respective interests implies acceptance to the benefit of inventory, or because the absent or de facto incapable cannot grant a division by agreement; b) Whenever the inventory constitutes a dependency of another judicial process – prevailing, in this case the competence by connection over the eventual will and interest of the parties in requesting notarial inventory: c) When the inventory is requested by the Public Prosecutor, triggering the judicial process itself, in which it intervenes as the main party, in the interest of the incapable, minor accompanied or absent.

Outside the above-mentioned cases, the inventory process can be processed and decided by notaries, provided that the consent of the notary and the majority of interested parties is verified. (Cfr. article 1083, No. 2 and No. 3 of the CPC; Cfr. of article 1 of the Annex of Law No. 117/2019, of 09/13).

The restoration, through Law No. 117/2019, of 09/13 (which expressly repealed Law No. 23/2013, of 03/05), of the competence/rule of the judicial courts to process the inventory processes sought the legislator to avoid the dragged, sinuous and labyrinthine character of the previous procedure, instituting a new procedural model even though it maintains familiarity with the previous regime. Thus, the inventory process assumes itself as a special form and contains specificities, which determine that the legislator has erected the inventory process as one of the special processes regulated in the CPC (Cfr. Title XVI of Book V of the CPC). Indeed, in articles 1082 to 1135 of the CPC – introduced by Law No. 117/2019, of September 13 – contains the normative regulation of inventory processes instituted in the judicial courts as of January 1, 2020 (Cfr. article 15 of the referred Law) and of the processes pending on that date in the notarial offices that are to be sent to a judicial court, in accordance with the provisions of articles 12 and 13 of the cited Law.

The new procedural model comprises several phases, which we distinguish, namely: a) a phase of pleadings in which the parties must necessarily raise and discuss all issues that condition the division, alleging and supporting who are the interested parties and their respective ideal quotas and what is the patrimonial estate, active and passive, that constitutes the object of the succession, under penalty of preclusion. In the new configuration of the inventory process, the initial request resembles, thus, a true initial petition, essentially when requested by whoever must exercise the functions of head of the couple, being that, in addition to the formal elements provided for in article 552 of the CPC that are adjusted to the inventory process the applicant (depending on the quality it assumes) has the burden of exposing and demonstrating the elements referred to in the applicable legal provisions (Cfr. articles 1097 and 1099, both of the CPC), taking notably a position on the ideal quotas of each interested party, depending on the regime of goods existing in the marriage of the deceased or the heirs, the existence of some testament or the rules on the succession concretely applicable, in order to be subject to contradiction. In case of not having all the elements and taking into account that, it is indisputable that, sometimes, there are difficulties in the performance of the position, the head of the couple should request a supplementary term to present the relation of goods and/or attach the necessary documents.

Presented the initial request of inventory, it is submitted to preliminary ruling of the judge, in accordance with the provisions of article 1100 of the CPC. In fact, given the specificity of the inventory process, showing itself essential for its development, the verification or confirmation of who will perform the position of head of the couple and the need to proceed to an appreciation of the alleged facts and the presented documents, the legislator provided that there is the preliminary intervention of the judge, being the initial request of inventory submitted to preliminary ruling, being that, it is up to the judge to pronounce the decisions that concretely adjust to the circumstances, being able to even decide for the preliminary dismissal (Cfr. art. 590, No. 1, of the CPC) when the manifest unfeasibility of the inventory is verified, or some insurmountable dilatory exception is detected. Now, not being a case of preliminary dismissal and not having the process all the elements for the confirmation/appointment of the head of the couple, the judge should pronounce a ruling of perfection aiming at: i) The supply of dilatory exceptions, under the terms of article 6, No. 2, of the CPC (Cfr. article 590, No. 2, al. a) of the CPC); ii) The supply of the irregularities of the pleadings, fixing a term for the supply/correction of the vice, “especially when they lack legal requirements, or the party has not presented an essential document or that the law makes the continuation of the cause depend” (Cfr. article 590, No. 2, al. b) and No. 3, of the CPC); iii) The joining of documents to allow the appreciation of dilatory exceptions/knowledge of the merit (Cfr. article 590, No. 2, al. c) of the CPC); iv) The supply of the insufficiencies/imprecisions in the exposition or concretization of the matter of fact alleged, “fixing a term for the presentation of a pleading in which the initially produced one is completed or corrected” (Cfr. article 590, Nos. 2, al. b) and No. 4, of the CPC).

After preliminary ruling, follows the opposition, exercising the cited interested parties the right to contradiction, being up to them to impugn concentratedly in the own pleading of opposition everything that respects to the definition of the universe of the direct interested parties and respective hereditary quotas, to the competence of the head of the couple and to the delimitation of the hereditary patrimony, including the passive (whose verification is, in this way, anticipated – from the moment of the conference of interested parties – to the one of the deduction of opposition and impugnations).

1. b) After we can distinguish a phase of sanitation, in which carried out that are the necessary diligences, foreseeing the possibility of a hearing/conference prior, the judge decides all the questions or litigious matters that condition the division and the definition of the patrimony to divide, also pronouncing, in that procedural moment – and after contradiction of the parties – ruling containing the form to the division (also it now anticipated for this phase of sanitation, previous to the conference of interested parties), in which it defines the ideal quotas of the several interested parties in the inheritance, before summoning the conference of interested parties.
2. c) A phase destined to the verification and reduction of eventual inofficiousness, which is embodied in an incident with the structure of an action grafted in the inventory. It may exist or not, since it is intended that the legitim heir can request, in the confrontation of the donee or legatee aimed, until the opening of the bids, the reduction of the donations or legacies that it considers vitiated by inofficiousness, the legitim heir must formulate the request, explicit and founded, of reduction of liberalities, giving place to the subsequent exercise of the contradiction by the defendants/beneficiaries of the allegedly inofficious liberalities, culminating, after production of proof, in a decision that decrees or rejects the pretended reduction by inofficiousness – this incident that must start until the moment of the beginning of the bids. – Cfr. art. 1118 of the CPC.
3. d) The phase of the division, which is characterized by the adoption of the diligences and acts that integrate the conference of interested parties, in which all the diligences that culminate in the consummation or concrete realization of the division must be carried out. In the absence of agreement between the interested parties, the division of the assets will result from the bids (which presuppose the necessary stabilization of the value of the assets, since it functions as a terminal moment for the request of evaluation precisely the beginning of the bids), which are included in the scope of the acts that integrate the own conference of interested parties, being also in it deduced the oppositions to a possible excess of bid by some of the heirs; and, subsidiarily, will have place the diligences of the formation of equalitarian lots, of the draw or – as ultima ratio – of the adjudication of assets in co-ownership.

Once the proceedings provided for in the phase of the conference of interested parties are completed, article 1120.º, number 1 of the CPC provides that the interested parties and the Public Prosecutor’s Office, when it has a main intervention, are notified to, within 20 days, submit a proposal for a distribution map, which includes the rights of each interested party and the filling of their shares, in accordance with the order determining the distribution and the elements resulting from the conference of interested parties. The procedure leading to the preparation of the map is provided for in numbers 2 to 4 of this article 1120.º, it should be highlighted that the Secretariat will be responsible for the preparation of the distribution map in accordance with the decision made by the Judge in the process. Once the sentence approving the distribution (provided for in article 1122.º of the CPC) is pronounced, it will be subject to an appeal, under the terms of subparagraph c) of number 2 of article 1123.º, provided that the fundamental assumption of the jurisdiction of the inventory action is verified. The appeal must be filed within 30 days, since it is applicable to what the CPC provides, in its articles 638.º, number 1 and 644.º, number 1, from whose combination results that term.

As was already the case in the repealed CPC and in Law No. 23/2013, of March 5, the legislator regulated, between articles 1125 and 1129, the hypotheses of new distribution, amendment of the distribution, annulment of the distribution or composition of the share of the pretermitted heir and of the additional distribution, maintaining the essence of the existing forecasts. In articles 1131 to 1135, the processes of distribution of assets resulting from justification of absence, separation, divorce, declaration of nullity or annulment of marriage or need for separation of the couple’s common assets in special cases are regulated, in a summary but precise way. The processing of each of these processes is sufficiently clarified from the terms of these provisions, applying to them, in everything that is omitted, the provisions relating to the inventory to put an end to the hereditary communion already analyzed above. As for the court’s jurisdiction to institute the process for distribution of common assets of the couple dissolved by divorce, the solution as to the competent court will depend on the body in which the divorce process occurred, being competent for the distribution subsequent to the divorce decreed judicially, the court in which it was decreed, the process should run attached to it, on which it is dependent, according to number 2 of article 206 of the CPC; the process subsequent to divorce decreed in the Civil Registry Office should be processed in the Family and Minors Court of the defendant’s residence, as this is the assignment that results from number 2 of article 122 of the LOSJ, approved by Law No. 62/2013, of August 26, in the wording given by Law No. 40-A/2016, of December 22 and the application of the rule of territorial jurisdiction stated in number 1 of article 80 of the CPC.