Out-of-court probate: how it works, when it applies and what changed with CNJ Resolution 571?

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After a death, the family must identify assets, debts and successors’ rights. Where the requirements are met, probate and division may be formalized at a notary’s office by public deed, without taking the entire probate through court. The alternative may simplify proceedings but is not necessarily cheaper or faster.

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?

Use our probate calculator for an initial estimate, then check tax, notarial, registration and legal fees for the case.

The traditional requirements of the out-of-court route are:

• Capacity and representation: identify all parties and follow article 12-A safeguards where minors or legally incapable parties are involved.

• 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 arrangements: CNJ Resolution 695/2026 removes prior proof of payment as a condition for the deed, without removing tax filing and payment duties. The deed must record that the parties, advised by their lawyers, know their obligations. Without prior payment, the notary notifies the tax authority within five days or the applicable tax-law period. Sefaz-SP maintains state-law requirements; a SIPET notification is not permission to leave tax unpaid.

• 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?

CNJ Resolution 571/2024 inserted specific national conditions into Resolution 35/2007 for notarial probate involving wills and minors or legally incapable parties. These rules are not unrestricted permission based solely on agreement.

• With a will: article 12-B requires express judicial authorization for a valid, effective will through a final, unappealable judgment in proceedings to open and implement it, alongside agreement and legal assistance. Article 12-A also applies to minors or legally incapable parties. Acknowledgment of a child or another irrevocable declaration prevents the notarial route under the rule; any claimed invalidity or ineffectiveness also requires a final judgment.

• With minors or legally incapable heirs: article 12-A requires their inheritance or marital share to be an undivided fraction of every asset, with no disposal of their property or rights. The deed’s effectiveness requires a favourable prosecution-service opinion. An objection is referred to the competent court.

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. Division and tax arrangements: separate the existing marital share from the inheritance, calculate entitlements and comply with ITCMD duties. A deed without prior proof of payment remains subject to article 15 of Resolution 35/2007 and state requirements.

• 4. Executing the deed: review its content and arrange the parties’ signatures personally or through valid representation, with legal assistance and any special controls required.

• 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

In this hypothetical example, Mr. Andrade leaves an apartment, a car, his wife and two adult children. There is no will and everyone agrees to division according to their rights. The marital regime, origin of assets and debts must be checked; one cannot assume the widow inherits the same share as each child.

If eligible, the family may choose a notarial deed, organize tax compliance and complete later registration. Agreement and complete documents help the process but justify neither a promise of completion within weeks nor a particular saving over court proceedings. This example is not an actual firm result.

The most common (and costly) mistakes

• Confusing deadlines. CPC article 611 provides two months to commence judicial probate. São Paulo’s late-commencement penalty uses 60 days from death and may be 10% of the tax, rising to 20% after 180 days (article 21, Law 10,705/2000). Tax filing, payment and possible extensions follow separate rules.

• 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

• Identify all parties and check agreement, capacity and representation, with the special safeguards required for minors or legally incapable parties.

• Check for the existence of a will (search with the CENSEC Center).

• Gather certificates and documents of the deceased, the heirs and the assets.

• Plan ITCMD compliance and deadlines. A deed without prior proof of payment does not remove tax duties; installment arrangements depend on their eligibility rules.

• 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 identifies the deceased’s assets, rights and debts and formalizes their allocation or division by public deed with legal assistance. The deed does not need judicial confirmation and supports later registration and release of assets. Some cases require prior court action. Costs and duration depend on the case.

What are the requirements for handling probate at the notary's office?

Agreement, a lawyer or public defender, proper identification and representation, and documentation of the parties and estate are required. Wills and minors are subject to articles 12-A and 12-B of CNJ Resolution 35/2007. Resolution 695/2026 removes prior proof of ITCMD payment as a condition for the deed, without eliminating state tax obligations.

Is out-of-court probate possible when there is a will?

It may be possible under article 12-B. A valid and effective will requires express judicial authorization through a final, unappealable judgment in proceedings to open and implement it, plus agreement and legal assistance. Article 12-A also applies where minors or legally incapable parties are involved. Acknowledgment of a child or another irrevocable declaration prevents the notarial route under the resolution.

Can probate with a minor heir be carried out at the notary's office?

Yes, subject to article 12-A: the heir’s inheritance or marital share must be an undivided fraction of every asset, without disposal of their property or rights, and the deed’s effectiveness depends on a favourable prosecution-service opinion. An objection brings the case before the court. Merely saying the division causes no harm is insufficient.

Where is out-of-court probate handled in São Paulo?

The notary may be freely chosen, without the territorial jurisdiction rules for judicial probate, subject to specific rules for electronic acts. The deed is then presented to the competent property registry, banks and other bodies. Wills must be checked; assets located abroad cannot be included in this deed.

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

Seek advice from the outset to identify heirs, documents, deadlines and eligibility. A lawyer or public defender is mandatory. Early advice helps organize proceedings but guarantees neither freedom from penalties nor a fixed completion date. The deed may require correction or be challenged in legally permitted circumstances.

An alternative requiring agreement and legal assessment

The notarial route may suit cases with agreement, documentation and compliance with requirements. Wills and minors require extra controls; new ITCMD rules do not remove tax analysis. Suitability depends on the case, without a promise of timing or savings.

Agreement, documentation and protection of rights are central. Court authorization, prosecution-service review and tax or registration duties cannot be waived merely because the family prefers a deed.

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 through the notarial 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.