02/11/2025
Did you know that it is possible to appoint a special trustee to administrate the assets inherited by a minor, even if the minor is still under parental authority?
As a rule, parents, as holders of parental authority, exercise the administration of their children assets. In the event of absence or incapacity of both parents, the asset administration is performed by a guardian, judicially appointed for such purpose. On the other hand, in the event of the death of one of the parents, the assets inherited by the minor would, as a general rule, be administered by the remaining guardian.
However, Brazilian legislation, aiming to safeguard the minor’s best interests, provides for the possibility of appointment of a special trustee.
According to Articles 1.693, III, and 1.733, 2nd paragraph, of the Brazilian Civil Code, the testator is allowed to appoint a special trustee for the administration of assets inherited by a minor . “Anyone who institutes a minor as heir or legatee may appoint a special trustee for the assets left to them, even if the beneficiary is under parental authority or guardianship.”
Such special powers may be assigned to one or more individuals, or even to a committee of trustees. It is possible, for example, the appointment of different trustees to administrate, each one, specific assets. In fact, even though it is more common for such role to be performed by an individual, there is no legal prohibition for the appointment of a legal entity as special trustee, which would allow a more technical and professional management of the assets.
Considering the legal provisions governing the appointment of a special trustee, several practical issues are often raised for debate, such as: does the role of the special trustee encompass all the assets inherited by the minor or only those that are not subject to forced heirship? And how should the special trustee’s rendering of accounts be carried out?
The legislation does not provide direct answers to the above questions, so that the trustee’s duties shall depend on the express wishes of the testator.
Therefore, when planning the succession, it is of the upmost importance for the testator to draft a clear and detailed will, with focus on the safeguard of the best interests of the minor. The will shall limit which assets are subject to the special guardianship, the extension of the powers granted to the special trustee, the conditions for the rendering of accounts and any other matters relevant to the specific case. Since any broader interpretation of the will is not legally admitted, the appointment of the trustee ensures the testator’s wishes to be complied with and shall eventually safeguard, in accordance with the testator’s judgment, the best interests of the minor.
Authored by José Silvano Garcia Junior
