How much does a probate cost in São Paulo? ITCMD, court costs, notary fees and lawyer's fees explained

After losing someone, the practical question soon arises: how much will it cost to settle the inheritance? A probate has costs — and ignoring them, or discovering them late, can weigh on the family's budget at an already difficult time. The good news is that these costs are predictable: they can be estimated and, in part, reduced.

In this guide, we break down the cost of a probate in São Paulo item by item — the tax, the costs, the notary's office and the lawyer —, show the cost difference between the judicial and the out-of-court route, and point out legitimate ways to pay less. At the end, an example with figures.

What are the costs of a probate?

The total cost of a probate, in São Paulo, is usually divided into four components:

• ITCMD — the state inheritance and gift tax, of 4% on the assets transmitted. It is, in general, the largest item.

• Costs — in judicial probate, the court costs; in out-of-court probate, the notary fees. Both proportional to the value of the estate.

• Lawyer's fees — mandatory in both routes; set, as a rule, as a percentage of the estate.

• Various expenses — certificates, asset valuations, authentications and registration of the transfers.

The sum of these items depends on two main variables: the value of the estate and the route chosen (judicial or out-of-court). Let us look at each.

How much is the ITCMD?

In São Paulo, the ITCMD is 4% on the value of the assets transmitted (Law 10.705/2000), after deducting the marital share of the spouse, where applicable. It is a state tax, paid by whoever receives the inheritance, and must be paid before the division of the estate.

Two warnings. First, the currency of the information: the Tax Reform provides for future progressive rates (up to 8%), but, in São Paulo, this still depends on a state law that has not been enacted — today, the 4% rate applies. Second, the penalty: delay in opening the probate triggers a penalty of 10% on the tax, rising to 20% if more than 180 days have passed since the death (art. 21, I, of Law 10.705/2000). Opening the probate on time is the simplest way not to pay more.

How much are the court costs (judicial) and the notary fees (out-of-court)?

This is the biggest difference between the routes. In judicial probate, there are court costs, calculated on the amount in dispute — in São Paulo, with the rate that rose from 1% to 1.5% under State Law 17.785/2023 (subject to floors and caps). In out-of-court probate, there are the notary's fees for the deed, also proportional to the value of the assets.

In the final sum, the out-of-court route is usually cheaper — and, above all, faster. The greater saving, often, lies not only in the amount, but in time: a judicial probate can take years (with costs that drag on), whereas the out-of-court route, where there is consensus, is resolved in months.

How much does the lawyer cost?

The presence of a lawyer is mandatory in both routes. The fees are freely agreed, but are usually set as a percentage of the value of the estate, observing the minimum schedule of the São Paulo Bar Association (OAB/SP). The percentage varies according to the complexity: number of heirs, existence of conflict, type of assets and route (judicial or out-of-court).

The practical recommendation is to settle the amount and the form of payment in writing, in a fee agreement, before starting — that way, there is no surprise. A good lawyer also helps to reduce the other costs (choosing the right route, identifying exemptions, avoiding the ITCMD penalty), which usually pays off the investment.

Practical example: the cost of the Andrade family's probate

Mr. Andrade passed away leaving, in São Paulo, a total estate of R$ 800,000 (an apartment and investments). He was married under the partial community of property regime, so half is the widow's marital share — the inheritance to be divided is R$ 400,000, between the widow and two children. All have legal capacity and are in agreement, and there is no will.

The calculation, in a simplified and illustrative way: ITCMD of 4% on R$ 400,000 = R$ 16,000; the notary's fees for the deed, proportional to the value; and the lawyer's fees, as agreed. Because it is out-of-court (there is consensus), the court costs are avoided and the route is resolved in months. Had they let 180 days pass before opening the probate, there would also be R$ 3,200 in penalty (20% on the ITCMD) — an entirely avoidable cost.

The most common (and costly) mistakes

• Delaying the opening of the probate and paying a penalty of 10% or 20% on the ITCMD.

• Going to court unnecessarily. Where there is consensus, the out-of-court route usually costs less and resolves faster.

• Taxing the marital share. The spouse's half is not an inheritance and does not pay ITCMD — including it inflates the tax.

• Ignoring exemptions and free legal aid. There may be an ITCMD exemption by value bracket and free legal aid on costs for those who cannot pay them.

• Not planning. Those who organize the succession during life (will, gifts, holding company) usually reduce future cost and conflict.

Checklist: to estimate (and reduce) the cost of the probate

• Value the estate and separate the marital share from the portion transmitted.

• Calculate the ITCMD (4% on the portion transmitted) and check for exemptions.

• Define the route (out-of-court, if there is consensus) and estimate court costs/notary fees.

• Settle the fees in writing before starting.

• Open the probate on time to avoid a penalty.

• Consider estate planning for the future, if the estate is substantial.

Frequently asked questions about the cost of a probate

What are the costs of a probate?

Generally four: the ITCMD (state inheritance and gift tax, 4% in São Paulo); the costs (court costs, in probate handled by the courts, or the notary fees, in out-of-court probate); the lawyer's fees (mandatory in both routes); and any expenses with the valuation of assets and certificates. The ITCMD is usually the largest item. The total depends on the value of the estate and the route chosen (judicial or out-of-court).

How much is the ITCMD in a probate in São Paulo?

In São Paulo, the ITCMD is 4% on the value of the assets transmitted (Law 10.705/2000), after deducting the spouse's marital share, where applicable. In an inheritance of R$ 400,000 to be divided, for example, the tax is R$ 16,000. Note: the Tax Reform provides for future progressive rates (up to 8%), but this depends on a state law that has not yet been enacted — today, the 4% rate applies. Delay in opening the probate triggers a penalty of 10% (or 20% after 180 days) on this tax.

Is out-of-court probate cheaper than judicial probate?

As a rule, yes — and it is usually also faster. In judicial probate there are court costs (in São Paulo, calculated on the amount in dispute, with the rate that rose from 1% to 1.5% under State Law 17.785/2023, subject to floors and caps). In out-of-court probate, there are the notary fees, also proportional to the value. To both, add the ITCMD and the fees. The greater saving of the out-of-court route is usually in time and in the absence of the strain of court proceedings.

How much does the lawyer cost in a probate?

Lawyer's fees are freely agreed, but are usually set as a percentage of the value of the estate, observing the minimum schedule of the São Paulo Bar Association. The percentage varies according to the complexity of the case, the number of heirs, the existence of conflict and the route (judicial or out-of-court). The ideal is to settle the amount and the form of charging in writing, in a fee agreement, before starting.

Is there an exemption or free legal aid in a probate in São Paulo?

There are two fronts. On the tax side, Law 10.705/2000 provides for ITCMD exemptions by value bracket in UFESPs (for example, for a lower-value residential property) and for gifts up to 2,500 UFESPs per year — the current limits must be checked with SEFAZ-SP. On court costs, those who cannot afford them without harming their own livelihood may request free legal aid. Each situation must be assessed to confirm eligibility.

How can the cost of a probate in São Paulo be reduced?

Some measures help: opening the probate within the deadline (avoiding the ITCMD penalty), choosing the out-of-court route when there is consensus (cheaper and faster), checking the applicable exemptions, and — above all — planning the succession during life, with a will, gifts or a family holding company, which can reduce cost and conflict. A lawyer can simulate the routes and indicate, for your estate, which is the most economical.

A predictable cost is a manageable cost

A probate has costs, but they need not be a surprise. By knowing the four components — tax, costs, notary's office and lawyer — and the impact of the route chosen, the family can plan the outlay and, with the right choices, reduce it.

The biggest savings usually come from three decisions: opening the probate on time, choosing the out-of-court route when there is consensus, and planning the succession during life. None of them is complicated — they all depend on information and timely guidance.

At Falchet e Marques Sociedade de Advogados, a firm in São Paulo (Av. Paulista), we conduct judicial and out-of-court probates and provide a cost estimate before starting, so the family can decide with clarity. We also work in estate planning, which reduces cost and conflict in the future.

Talk to our team on WhatsApp: +55 11 95901-1854 — and receive an estimate of the probate cost in your case.