Out-of-court probate: when can it be done and how long does it take?

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Probate may require court proceedings, particularly where there is a dispute. For qualifying cases, notarial probate is an alternative completed by public deed. It avoids court probate proceedings, although some cases still require prior judicial authorization or a favorable opinion from the Public Prosecutor’s Office.

With complete documents and agreement among the parties, a straightforward case may progress within weeks or a few months. This is a possibility, not a guaranteed timeline: foreign documents, tax and registration requirements, or safeguards for persons lacking legal capacity may extend the process.

This article explains the requirements, stages and factors affecting timing. Delaying probate may hinder asset transfers and generate tax charges. Not every asset is automatically frozen: specific legal routes for withdrawals or sales require a separate assessment.

When can probate be done out of court?

The ordinary route under CPC article 610 requires capable adult heirs, agreement and no will, with assistance from a lawyer or public defender. CNJ Resolution 35/2007, amended by Resolution 571/2024, also provides for the cases covered by articles 12-A and 12-B. Agreement alone is not enough.

For a minor or person lacking legal capacity, their inheritance or marital property share must be allocated as an undivided share in each asset, with no disposal of their assets or rights; the deed’s effectiveness depends on a favorable opinion from the Public Prosecutor’s Office. An objection sends the case to the competent judge. With a will, express authorization from the succession court in a final, non-appealable decision and the other article 12-B requirements are necessary; recognition of a child or another irrevocable declaration in the will requires court probate. In São Paulo, MPSP Resolution 2,051/2025 requires judicial authorization to withdraw or move money belonging to a minor or person lacking capacity, and for a tutor or curator to accept the inheritance. These safeguards require a case-specific assessment.

How does the step-by-step at the notary's office work?

Out-of-court (notarial) probate centers on the drawing up of a public deed of probate and division of the estate at a Notary of Deeds. In broad terms, the path involves:

Plan ahead with our probate cost and ITCMD calculator; results are estimates, not a tax assessment.

• a) Gathering documents: death, identity and marital status records, will searches, property records, bank statements, vehicle and debt information, and required certificates; distinguish marital property from the estate and establish asset valuations.
• b) Assessing and paying ITCMD: check state law, the taxable base and exemptions; São Paulo Law 10,705/2000 provides a 4% rate. CNJ Resolution 695/2026 waives prior proof of payment for the deed, not the tax obligation. Sefaz-SP maintains the state requirement for prior payment. If payment has not been made beforehand, the notary must notify the tax authority within five days or the period under tax legislation; the deed must record the parties’ acknowledgment of their duty to pay.
• c) Agreeing on the division: obtain the parties’ agreement, legal assistance and the safeguards required for special cases.
• d) Drawing up the deed: the notary formalizes the probate and the division of the estate in a public deed.
• e) Registering: the deed is taken for registration to transfer the assets (real estate at the Real Estate Registry, vehicles at the Detran, accounts at the banks).

Complete documents, agreement and tax compliance help avoid requests for corrections, but do not replace scrutiny by the notary and the bodies responsible for transferring assets.

How long does out-of-court probate take?

There is no single deadline for the deed and all asset transfers. A simple case may take weeks or a few months; outstanding registration, valuation, documentary, tax or judicial requirements may extend it. Comparisons with court probate depend on the circumstances of each route.

In practice: timing depends on document preparation, agreement, tax and registration requirements and, where applicable, the Public Prosecutor’s Office or the court. Preparation reduces avoidable delays but does not justify promising a completion date.

Hypothetical example: a division with complete documents

In a hypothetical example, Aparecida leaves an apartment and a bank account to three capable adult children. Assuming they are the only successors, there is no will and they agree, a lawyer checks the documents and remaining requirements for notarial probate.

The parties can gather documents, handle ITCMD under the applicable rules and execute the deed of probate and division. They must then complete transfers at the property registry and bank. This illustrates the stages of a simple case, not a real result obtained by the firm or a guaranteed timeline or saving.

The most common (and costly) mistakes

• Choosing a route without comparing alternatives: court probate is not inherently a mistake, even where notarial probate is available.
• Ignoring safeguards for minors, persons lacking capacity or wills, or insisting on the notarial route despite a dispute requiring a judicial decision.
• Incomplete documentation, which holds up the drawing up of the deed.
• Delaying the ITCMD return or payment, with a risk of penalties and charges.
• Thinking a lawyer is not needed — the presence is mandatory.
• Delaying probate or failing to complete registrations after the deed, hindering asset transfers and adding costs.

Checklist: can your probate be done out of court?

• Are the heirs capable adults, or are the specific safeguards for minors or persons lacking legal capacity satisfied?
• Is there consensus among everyone on the division of the estate?
• Is there no will (or does the case fit the admitted situations)?
• Has the documentation of the deceased, the heirs and the assets been gathered?
• Can the ITCMD be calculated and paid?
• Do you already have a lawyer to assist with the act?

Frequently asked questions about out-of-court probate

When can I do an out-of-court probate?

Ordinarily, capable adult heirs must agree, there must be no will, and legal assistance is mandatory. Articles 12-A and 12-B of CNJ Resolution 35/2007 allow minors or persons lacking legal capacity with an undivided share in each asset, no disposal and a favorable Public Prosecutor’s Office opinion; a will requires express judicial authorization in a final, non-appealable decision and the remaining safeguards. Recognition of a child or an irrevocable declaration in the will requires court probate.

Does out-of-court probate require a lawyer?

Yes. CPC article 610, paragraph 2, requires assistance from a lawyer or public defender. The professional checks documents, heirs, assets, debts, taxes and the division and assists with the deed and registrations. This aims to prevent defects, but does not guarantee a result or timeline.

How long does an out-of-court probate take?

There is no fixed timeline. A simple, agreed case with documents and tax matters organized may finish within weeks or a few months. Requirements from the notary, registry, tax authority and, in special cases, the Public Prosecutor’s Office or the court may extend the process. Transferring assets may require further steps after the deed.

In São Paulo, where do I do the out-of-court probate?

The deed is executed at a Tabelionato de Notas, generally freely chosen by the parties. São Paulo’s ITCMD rate is 4%, with specific taxable-base and exemption rules. CNJ Resolution 695/2026 waives prior proof of payment for the deed, not the tax obligation; Sefaz-SP maintains the state requirement for prior payment. Assets must then be transferred at the property registry, Detran or bank, as applicable.

When should I seek a lawyer for an out-of-court probate?

Soon after the death. CPC article 611 allows two months to initiate probate; São Paulo’s 60-day tax rule for avoiding the late-opening penalty is distinct. Under Law 10,705/2000, that penalty is 10% of the tax after 60 days and 20% if the delay exceeds 180 days, separate from late-payment charges. A lawyer checks the available route and organizes the necessary steps.

The simpler path exists — for those who qualify

Notarial probate may be a more streamlined alternative where all requirements are met, including safeguards for minors and conditions relating to wills. The choice depends on the family, assets and documents, not merely an expectation of speed.

At Falchet e Marques Sociedade de Advogados, in São Paulo (Av. Paulista), we handle court and notarial probate. We assess the appropriate route and organize documents, taxes, division and transfers to avoid unnecessary costs and delays.

Talk to our team on WhatsApp: +55 11 95901-1854 — would you like to know whether your family's probate can be done out of court? Send us the details for an assessment.