Frequently asked questions on Succession Law in São Paulo

Brazilian probate (inventário) identifies assets, liabilities and successors and formalises division of the estate. It is generally required to regularise inherited assets, although specified sums may be released under special statutory procedures without full probate. Sales before division are not absolutely prohibited: authorisation and assignment have specific conditions. CPC article 611 gives two months to begin; São Paulo’s tax penalty uses a separate 60-day rule.

Yes, by public deed with a lawyer, agreement and the applicable conditions. For minors or persons lacking legal capacity, CNJ Resolution 35 article 12-A requires their inheritance or marital share as an undivided interest in every asset, no disposal of their rights and a favourable Public Prosecutor’s opinion. With a will, article 12-B requires express judicial authorisation in a final judgment and other safeguards; acknowledgement of a child or another irrevocable declaration requires judicial probate. Neither time nor savings are guaranteed. In São Paulo, MPSP safeguards require a court order to withdraw or move money; a tutor or curator needs judicial authorisation to accept an inheritance or legacy.

CPC article 611 requires commencement within two months of the succession opening. Separately, São Paulo Law 10.705/2000 article 21(I) imposes a 10% ITCMD penalty if probate is not requested within 60 days; beyond 180 days it becomes 20%, not 30%. Late-payment charges may be separate. Two months and 60 days are not interchangeable.

Add the ITCMD actually due, legal fees, court or notarial charges, certificates and later registrations. São Paulo’s statutory rate is 4% of the taxable base, subject to exemptions and exclusion of the survivor’s legitimate marital share. Deed charges are already part of notarial costs: do not count them twice. Assets, documents, annual fee tables and complexity determine the total.

ITCMD is the state inheritance and gift tax. São Paulo Law 10.705/2000 article 16 provides a 4% rate on the taxable base, subject to valuation and exemption rules. Constitutional Amendment 132/2023 requires progressivity; actual changes depend on the legislation applicable to the taxable event and constitutional commencement rules, not a bill alone. The survivor’s marital share and valuation need analysis. Our probate calculator gives an initial estimate of ITCMD and costs, not a definitive assessment.

For inheritance, taxpayers are heirs or legatees; for gifts, generally the recipient, under state law. STJ Theme 1074 waives prior ITCMD payment for confirmation and issue of instruments in arrolamento sumário, while requiring proof of taxes on estate assets and income. CNJ Resolution 695/2026 waives prior proof for a notarial deed and requires notification to the tax authority within five days, or the tax-law deadline, where payment has not occurred. This is not an exemption or repeal of tax deadlines: Sefaz-SP states that São Paulo law still requires advance payment. Filing, payment and registration need separate analysis.

São Paulo Law 10.705/2000 provides exemptions with conditions varying by asset and transfer. UFESP thresholds, residential use and other criteria must be checked together; being below a value limit is not always enough. UFESP changes annually. Confirm the applicable exemption at the taxable-event date before paying.

Where forced heirs exist, the legítima reserves half the estate, not half of all a couple’s assets. Civil Code articles 1.845–1.847 require identifying successors, separating the survivor’s marital share, accounting for debts and funeral expenses and considering assets subject to collation. Article 1.845 lists descendants, ascendants and spouses; stable-union partners’ rights also require analysis. A valid will can allocate the disposable portion; without forced heirs, freedom is wider but remains subject to other legal rules.

Ordinary forms are a public will before a notary, a closed will subject to formal presentation, approval and sealing, and a private will, handwritten or mechanically produced, under the statutory reading and witness requirements. Merely handing over a sealed paper or writing alone is not enough. A will may allocate the disposable portion and appoint an executor, respecting capacity, forced shares and formalities. It can help prevent disputes, not eliminate them.

Article 1.829 provides for descendants, potentially alongside the spouse depending on the property regime; without descendants, ascendants alongside the spouse; then the spouse; and finally collateral relatives up to the fourth degree. Partners’ rights, proximity and representation rules also apply. If there are no successors, transfer to public authorities requires the statutory vacant-estate process, not an informal handover.

Yes. STF Theme 809 applies Civil Code article 1.829 to stable unions. The relationship, property regime and assets must be established, separating marital property from inheritance. The ruling limited its temporal effects to judicial probate without a final partition judgment and extrajudicial divisions without a public deed, on its terms; it does not automatically reopen completed divisions.

Meação is the share already belonging to a spouse or stable-union partner under the property regime, not inheritance. That share, if any, must first be assessed using the assets’ origin and applicable regime. The estate comprises the deceased’s property and relevant obligations. The survivor is not automatically entitled to half of every asset, and their legitimate existing share is not taxed as an inherited transfer.

A family holding company concentrates assets or equity interests and may organise management, gifts of shares, usufruct and rules between successors. Compare formation costs, ITBI where applicable, ITCMD, income tax, accounting and maintenance with direct ownership. It guarantees neither tax savings, complete avoidance of probate nor protection against legitimate creditors. Shares still owned at death pass through succession; forced shares and third-party rights must be respected.

A valid will, documented gifts, suitable clauses, family discussion and, where useful, a company structure can reduce uncertainty. Planning must respect forced shares, spouses’ or partners’ rights and creditors, with periodic review of documents, assets and liabilities. It may reduce uncertainty and costs, but cannot guarantee no conflict.

After a death, seek advice before procedural and tax deadlines — two months under the CPC and 60 days under São Paulo’s late-opening penalty rule. Advice is also useful before wills, gifts or company arrangements, and where disputes, debts, stable unions or foreign assets are involved. Analysis identifies the route, tax obligations and necessary documents.