Is buying a property under probate worth it? Risks, safeguards and how to close safely

Probate properties may be offered at a discount, but this is neither a rule nor a guarantee of value. Compare the price with the market, costs, debts and the possibility of obtaining the intended registered title. Seller urgency does not replace that assessment.

The inheritance passes to heirs when succession opens, but remains undivided until partition (arts. 1,784 and 1,791, Civil Code). The register may still name the deceased. The estate administrator acts within statutory powers; an heir’s share does not make that heir sole owner of a specific property.

This article explains how to safely buy a property under probate, what the legal routes are and where the risks lie. The cost of inaction — or rather, of haste — is paying for a property that may not transfer as the buyer expected.

Who owns the property while probate is not concluded?

Until partition, each co-heir has an undivided share in the inheritance as a whole, not exclusive title to each asset. Check whether the transaction transfers the property through the estate or only a co-heir’s inheritance rights.

Its purpose is easy to explain: until the partition, no one may dispose of the property as if it were exclusively theirs. For that reason, selling an estate asset requires care that does not exist in the sale of an ordinary property — and that is where the risk lies for the hasty buyer.

How is a property under probate bought?

There are basically two routes, and the right one depends on the stage and the type of probate:

The probate cost calculator provides an informative estimate. It does not calculate the property price or validate the purchase.

• a) Sale of the asset by the estate. In judicial probate, art. 619, I, CPC requires the judge’s authorization after interested parties are heard. Out of court, art. 11-A of CNJ Resolution 35/2007 permits authorization by public deed with itemized expenses, earmarked proceeds, no asset-freezing restrictions, tax and notarial information and security for the use of proceeds. It is not general permission to sell and distribute the money.
• b) Assignment of inheritance rights. An heir may assign their share of the estate (the inheritance portion), by public deed (art. 1,793 of the Brazilian Civil Code). Note a decisive technical point: the assignment falls upon the fraction of the estate as a whole, and the assignment of a single asset of the estate, before the partition, is treated with restrictions by law (art. 1,793, §§ 2 and 3). In other words, "buying an heir's apartment" is not as straightforward as it seems.

In out-of-court probate, art. 12-A, § 1, of CNJ Resolution 35/2007 prohibits disposing of the assets or rights of a minor or legally incapable interested party. Article 11-A does not remove that protection. Inheritance ITCMD must also be distinguished from taxes potentially payable on the sale.

In both routes, review the register, debts, taxes, authority to act, required permissions and the route to a registrable title. Legal structuring reduces risks but does not guarantee completion.

Which risks must the buyer be aware of?

Buying from the estate brings specific risks that do not arise in an ordinary purchase:

• The co-heirs' right of first refusal. Before an heir assigns their share to an outsider, the other co-heirs have a right of first refusal in the acquisition (arts. 1,794 and 1,795 of the Brazilian Civil Code). Ignoring this may give rise to a dispute.
• The estate's debts. The deceased's debts are paid by the estate before the partition; this may affect the assets and the outcome of the division.
• ITCMD and succession costs. Transmission by inheritance involves the ITCMD (the state inheritance and gift tax) and probate costs, which affect the deal.
• Litigation among the heirs. If there is a conflict, the sale may stall — and the buyer is caught in the middle.

Knowing these risks before paying any amount is what allows the deal to be structured with protection.

A practical example: the house three siblings wanted to sell

Hypothetical example: three siblings have shares in an estate containing a house. Ricardo is interested, but should not pay one sibling as though that person alone owned the property. The object of the transaction and authority to sell require verification.

The assessment must distinguish a sale by the estate, with the applicable court or notarial authorization, from an assignment of inheritance shares by public deed. The latter does not guarantee allocation of that house and requires attention to co-heirs’ pre-emption rights. Price, payment and registration must match the chosen structure.

The most common (and costly) mistakes

• Paying before confirming the stage of the probate and the authorizations.
• Closing with a single heir, as though that heir exclusively owned the property.
• Ignoring the court authorization (alvará) in the sale of an estate asset in judicial probate.
• Confusing the assignment of an inheritance portion with the purchase of the specific property.
• Forgetting the co-heirs' right of first refusal (arts. 1,794 and 1,795 of the Brazilian Civil Code).
• Failing to factor the estate's debts, the ITCMD and costs into the price.

Checklist: buying a property under probate safely

• At what stage is the probate (judicial or extrajudicial)?
• Who are the interested parties and what is their position on the transaction?
• Is there the appropriate court or notarial authorization?
• Is the deal a sale by the estate or an assignment of inheritance rights?
• Has the co-heirs' right of first refusal been observed?
• Are there estate debts, ITCMD and costs to factor into the price?

Frequently asked questions about buying a property under probate

Can I buy a property that is still under probate?

It is possible, depending on the procedure and transaction. For a court-authorized sale by the administrator, art. 619, I, CPC requires judicial permission after interested parties are heard, not automatic unanimity. An out-of-court sale requires authorization by public deed and compliance with art. 11-A of CNJ Resolution 35/2007. An assignment of inheritance rights by public deed is a different transaction.

What is an assignment of inheritance rights, and how do I buy through one?

It transfers an inheritance share by public deed under art. 1,793 of the Civil Code. Before partition, the share concerns the inheritance as a whole, not exclusive ownership of a particular property. Assignment of rights over a single asset is ineffective under § 2, and individual disposal without the required authorization is subject to § 3.

Is buying a property under probate cheaper, and is it worth it?

Not necessarily. Compare any discount with market value, debts, taxes, costs and the possibility of registration. A legally structured transaction reduces risks but guarantees neither economic benefit nor freedom from disputes.

In São Paulo, how does the sale of an estate property work?

In court proceedings, the administrator needs judicial permission after interested parties are heard. Out of court, art. 11-A of CNJ Resolution 35/2007 requires a deed with specific purposes and safeguards, including allocation of proceeds to expenses and security for that allocation. Tax analysis must distinguish inheritance ITCMD from taxes potentially applicable to the sale.

When should I consult a lawyer to buy a property under probate?

Before paying a deposit or signing. Review the probate stage and procedure, interested parties, administrator’s powers, debts, taxes, title register and the asset or rights being transferred. Advice reduces risks but does not guarantee completion or absence of litigation.

The discount only pays off with the right structure

Any discount must be assessed against the legal structure: authority to transfer, applicable permission, the object, any co-heirs’ pre-emption rights and the possibility of registration. An estate sale and an assignment by an heir are different transactions.

At Falchet e Marques Sociedade de Advogados, a law firm in São Paulo (Av. Paulista), we combine our Real Estate and Succession Law practices to safely structure the purchase of properties under probate — from the court authorization (alvará) to the assignment of inheritance rights.

Talk to our team on WhatsApp: +55 11 95901-1854 — about to buy a property under probate? Send us the details so we can assess the stage, the risks and the safe route.