Frequently asked questions on Succession Law in São Paulo

Probate (inventário) is the procedure to ascertain the assets, debts and heirs of the deceased and to divide the estate. It is mandatory whenever there are assets to transfer — without it, the heirs cannot sell, transfer or regularize the deceased's assets. The deadline to open probate is 60 days counted from the death (art. 611 of the Code of Civil Procedure), and delay generates a penalty on the ITCMD.

Yes. Extrajudicial probate is carried out by public deed at the notary office, without a court action, where all the heirs are of age, legally capable and in agreement, and a lawyer assists. It is far faster and cheaper than judicial probate. CNJ Resolution 571/2024 broadened the available situations, allowing the extrajudicial route even in certain cases involving a will or a minor heir, provided the requirements are met.

Probate must be opened within 60 days of the death (art. 611 of the Code of Civil Procedure). In São Paulo, opening it after that deadline generates a penalty on the ITCMD (State Law 10.705/2000): the São Paulo tax authority applies a surcharge on the tax due when probate is commenced late. For this reason, even if the division of the estate takes time, it is important to start the procedure within the deadline to avoid the penalty.

The largest cost is usually the ITCMD (in São Paulo, 4% on the value of the assets). To this are added the costs (court costs or notary costs, in the extrajudicial route) and attorney's fees. In the extrajudicial route, there are also the deed fees. Overall, the cost varies according to the value of the estate and the route chosen — extrajudicial probate, when available, tends to be cheaper and faster than judicial probate.

The ITCMD (inheritance and gift tax) is the state tax on transfers by inheritance (causa mortis) and on gifts. In São Paulo, the rate is 4% (State Law 10.705/2000), applied to the value of the transferred assets. Although Constitutional Amendment 132/2023 provided for the future progressivity of the tax, in São Paulo this depends on a specific state law not yet enacted — for now, the rate remains fixed at 4%.

In inheritance, the ITCMD is owed by the heirs, in the course of probate; in a gift, as a rule by the donee (the recipient). In São Paulo, the tax must be paid so that probate or the gift can be completed and the assets transferred. Payment is a condition for the division of the estate and for the registration of the assets (such as real estate) in the beneficiaries' names. The calculation is based on the value of the assets.

Yes, in situations provided for in State Law 10.705/2000 — for example, the transfer of a residential property worth up to a certain limit in UFESPs, subject to the legal conditions, and other specific situations. As the limits are set in UFESPs (updated each year) and there are requirements to be met, it is worth confirming the exemption applicable to the specific case with a lawyer before paying the tax.

Only in part. If you have forced heirs (descendants, ascendants or spouse), half of your estate — the forced share (legítima) — is reserved for them by law (art. 1.846 of the Brazilian Civil Code). The other half is the freely disposable portion, over which you may freely dispose by will, leaving it to whomever you wish. Without forced heirs, you may dispose of your entire estate.

A will may be public (executed at the notary office, the safest and most usual form), sealed (written and delivered sealed to the notary) or holographic (written by the testator and read before witnesses). It allows the freely disposable portion of the estate to be allocated, the person who will handle the execution to be appointed, and the succession to be organized. A well-drafted will, respecting the forced share, prevents disputes among the heirs.

The order of succession in art. 1.829 of the Brazilian Civil Code applies: first the descendants (concurrently with the spouse, depending on the marital property regime); failing them, the ascendants (also with the spouse); then the spouse alone; and, finally, the collateral relatives up to the fourth degree (siblings, nephews and nieces, uncles and aunts, cousins). Each class excludes the next. With no heir whatsoever, the assets go to the public authorities.

Yes. The Federal Supreme Court, in Theme 809, declared unconstitutional the different treatment the law gave to the partner and determined that the partner inherits on the same terms as a spouse. Thus, in a stable union, the partner shares in the inheritance according to the order of succession, on an equal footing with what would apply to a spouse — subject to the property regime of the union.

The marital half-share (meação) is the half of the joint assets that already belongs to the surviving spouse or partner by reason of the property regime — it is not inheritance, it is their own property. Inheritance is what is transferred to the heirs after death. When a married person dies, the survivor's half-share is first set apart; only the other half (plus the deceased's separate assets) makes up the inheritance to be divided.

A family holding company is a company that concentrates the family's assets (real estate, equity interests, investments). When well structured, it organizes the succession during one's lifetime — distributing quotas to the heirs with clear rules — can reduce the need for and cost of probate, and brings tax efficiency. It is legitimate succession planning, not asset shielding; its structuring must respect the forced share of the forced heirs.

Through succession planning carried out during one's lifetime: a will that organizes the freely disposable portion, possibly a family holding company, gifts with appropriate clauses and dialogue among the heirs. Most disputes arise from a lack of clear rules and from delay in resolving the division of the estate. Anticipating these decisions, with legal guidance, drastically reduces the risk of conflict and the emotional and financial cost of probate.

To open probate (preferably within the 60 days to avoid the ITCMD penalty), to make a will or plan the succession during one's lifetime, and in the face of any question about inheritance, the division of the estate or a gift. In São Paulo, a specialized firm conducts probate (judicial or extrajudicial), handles the ITCMD and structures the planning that best protects the family and the estate.