Out-of-court probate: how it works, when it applies and what changed with CNJ Resolution 571?
Out-of-court (notarial) probate at the notary's office: requirements, step by step, costs and what changed with CNJ Resolution 571/2024 (wills and minor heirs).
Out-of-court probate is carried out at a notary's office, by public deed, without court proceedings (Law 11.441/2007; art. 610 CPC). As a rule, it requires heirs with legal capacity, consensus on the division of the estate, a lawyer and the ITCMD paid. CNJ Resolution 571/2024 broadened its scope, now allowing, with safeguards, cases involving a will and minor or legally incapable heirs.
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Losing someone is hard enough; turning it into court proceedings lasting years is what many families fear. The good news is that, in most cases, probate does not require a judge: it can be carried out directly at a notary's office, by public deed, in a much faster and cheaper way. This is out-of-court (notarial) probate.
And, recently, it became even more accessible: a CNJ resolution broadened the situations in which the notary's office can resolve a probate — including cases that previously could only proceed in court. In this guide, you will understand what out-of-court probate is, when it applies, the step by step, and what changed with this development.
What is out-of-court probate?
Out-of-court probate is the identification of the assets, rights and debts of the deceased and their division among the heirs, carried out by public deed at a notary's office — without court proceedings. It was created by Law 11.441/2007 and is now provided for in art. 610 of the Code of Civil Procedure.
The deed executed by the notary is a valid instrument to transfer the assets: with it, the heirs register the properties in their names at the real estate registry office, transfer vehicles at the Detran and operate accounts and investments at the banks — without needing confirmation from a judge. In practice, this is what makes the route so much more agile.
What are the requirements for handling probate at the notary's office?
The traditional requirements of the out-of-court route are:
Adult heirs with full legal capacity: all interested parties must be fully capable.
Consensus: everyone must agree on the division of the estate (there can be no dispute among heirs).
Lawyer: the presence of a lawyer is mandatory in the deed, assisting the parties.
ITCMD paid: the state inheritance and gift tax must have been paid (or the situation regularized before the Treasury).
Certificates: death certificate, documents of the heirs and the deceased, certificates of the assets and tax certificates.
When there is a conflict among heirs, or when the law requires it (in situations we will see), the route becomes judicial probate. For this reason, the first step is always the diagnosis: checking whether the case meets the conditions for the notary's office.
What changed with CNJ Resolution 571/2024?
Until recently, two situations required the judicial route: the existence of a will and the presence of a minor or legally incapable heir. CNJ Resolution 571/2024 changed this landscape, broadening the scope of out-of-court probate:
With a will: it became possible to handle the probate at the notary's office even when there is a will, provided it has already been opened/recorded as the case may be and there is consensus among interested parties with legal capacity.
With minor or legally incapable heirs: out-of-court probate became admissible even in these cases, generally with the intervention of the Public Prosecutor's Office to guarantee the protection of their interests, and provided the division of the estate does not harm them.
It is an important change, which brings more cases to the notary's office and relieves the courts. But “being able” to do it at the notary's office does not mean it is simple: these cases require careful handling and the assessment of a lawyer, because the details (type of will, interests of the legally incapable party) make a difference.
How does it work, step by step?
The out-of-court route usually follows this sequence:
1. Gathering documents: death certificate, documents of the deceased and the heirs, marriage certificate, and the documentation of the assets (property records, statements, vehicle documents).
2. Appointment of a lawyer and verification of the conditions (consensus, legal capacity, will).
3. Calculation and payment of the ITCMD at SEFAZ-SP, with generation of the payment slip.
4. Execution of the deed of inventory and division of the estate at the notary's office, signed by all heirs and by the lawyer.
5. Transfer of the assets: registration of the properties in the property records, transfer of vehicles and release of accounts, based on the deed.
Practical example: the Andrade family's probate at the notary's office
Mr. Andrade passed away leaving an apartment and a car in São Paulo, a widow and two children — all adults and in agreement with the division of the estate, and with no will. Instead of opening court proceedings, the family chose the out-of-court route.
With the documentation gathered, the ITCMD calculated and paid, and the lawyer assisting, the deed of inventory and division of the estate was executed within a few weeks. With the deed, the apartment was registered in the heirs' names and the car transferred at the Detran. What, in the judicial route, could take years, was resolved in months — at a lower cost and without the strain of court proceedings. It was the consensus among the heirs that made this possible.
The most common (and costly) mistakes
Delaying the opening of the probate. The delay triggers a penalty on the ITCMD (10%, or 20% after 180 days since the death) — and disagreements tend to grow over time.
Trying the notary's office when there is a dispute. Without consensus among the heirs, the route is judicial; insisting on the notary's office only causes delay.
Ignoring the existence of a will. Even with the CNJ's relaxation, the will must be handled correctly before the deed.
Forgetting the deceased's debts. Debts are paid up to the value of the inheritance and must be considered in the division of the estate.
Leaving assets out. Forgotten assets require a supplementary division later — rework and additional cost.
Checklist: for a smooth out-of-court probate
Confirm that all heirs have legal capacity and are in agreement.
Check for the existence of a will (search with the CENSEC Center).
Gather certificates and documents of the deceased, the heirs and the assets.
Calculate and pay the ITCMD and generate the payment slip; consider installments if necessary.
Carry out a complete survey of the assets and debts to avoid a supplementary division.
Rely on a lawyer from the start (legal requirement and security of the division of the estate).
Frequently asked questions about out-of-court probate
What is out-of-court probate?
It is the probate carried out at a notary's office, by public deed, without the need for court proceedings. It was created by Law 11.441/2007 and is now set out in art. 610 of the Code of Civil Procedure. With the deed executed by the notary, the heirs divide the estate and can transfer the assets into their own names directly at the real estate registry offices, banks and motor vehicle authorities. It is, as a rule, much faster and cheaper than judicial probate.
What are the requirements for handling probate at the notary's office?
Traditionally: that all heirs are adults with full legal capacity and agree on the division of the estate, and that a lawyer assists the act. In addition, the ITCMD must be paid and the necessary certificates gathered. The presence of a will or of a minor or legally incapable heir, which previously required the judicial route, became admissible in the out-of-court route under CNJ Resolution 571/2024, generally with the intervention of the Public Prosecutor's Office and provided there is consensus.
Is out-of-court probate possible when there is a will?
Yes, it has become possible. CNJ Resolution 571/2024 authorized out-of-court probate even when there is a will, provided the will has already been opened and complied with judicially (or recorded, as the case may be) and that all interested parties have legal capacity and are in agreement. Before this change, the existence of a will required the judicial route. Even so, it is prudent for a lawyer to assess the specific case, because there are particularities depending on the type and content of the will.
Can probate with a minor heir be carried out at the notary's office?
It has become possible, with safeguards. CNJ Resolution 571/2024 allowed out-of-court probate even with minor or legally incapable heirs, generally with the participation of the Public Prosecutor's Office to oversee the protection of their interests, and provided the division of the estate does not harm them. It is a recent and important change, but it requires careful handling — for this reason, in such cases, the assistance of a lawyer is even more relevant.
Where is out-of-court probate handled in São Paulo?
At any notary's office — the interested party may freely choose the office, with no restriction by neighborhood or by the location of the assets. The deed of inventory and division of the estate executed at that office is then taken to the real estate registry offices where the properties are located, to the banks and to the Detran, in order to transfer each asset. In São Paulo, the existence and location of wills can be checked through the Notarial Center (CENSEC), which is usually required before execution of the deed.
When should I look for a lawyer for out-of-court probate?
Right at the start — not least because a lawyer is mandatory for the act, and it is the lawyer who confirms whether the case can in fact proceed by the out-of-court route (consensus, legal capacity, will, minors). Seeking advice early makes it possible to gather certificates, calculate the ITCMD, avoid the late-filing penalty and conduct the division of the estate so that no one is harmed. Because the deed is final, it is better to settle everything before executing it than to try to correct it afterward.
Faster, cheaper — when there is consensus
Out-of-court probate is, for most families, the best path: it resolves the inheritance in months, at a lower cost and without the strain of court proceedings. And, with the broadening brought by CNJ Resolution 571/2024, it now reaches situations that were previously tied to the courts.
The key remains consensus and good handling. Where there is agreement among heirs with legal capacity, the notary's office resolves it; where there are sensitive details (will, minors), the out-of-court route is now possible, but calls for technical care.
At Falchet e Marques Sociedade de Advogados, a firm in São Paulo (Av. Paulista), we conduct out-of-court and judicial probates — from gathering documents and calculating the ITCMD to executing the deed and registering the assets. If your family needs to resolve an inheritance, it is worth understanding whether the case can proceed by the faster route.
Talk to our team on WhatsApp: +55 11 95901-1854 — and find out whether your probate can be handled at the notary's office.