Court order to release a deceased person’s funds
Not every sum left behind in Brazil requires probate. For a defined set of payments, the law lets dependants and heirs collect under a court order alone. For everything else it does not — and that line is what we settle first.
5,0 · 18 Google reviewsAn alvará judicial is a court order directing a bank or a paying authority to hand a specific sum to the person entitled to it. Under Law 6,858/1980, sums owed by an employer and the balances of the deceased’s FGTS (severance fund) and PIS-PASEP accounts are paid to the dependants registered with Brazilian social security and, failing them, to the heirs named in a court order — independently of probate. Outside those cases, probate remains compulsory.
What is released without probate.
- Wages and employment sumsAmounts owed on any basis by an employer to the employee and not collected during their lifetime.
- Public sector paySums owed by the federal government, states, municipalities and their agencies by reason of office or employment (Decree 85,845/1981).
- FGTS and PIS-PASEPThe balances of the deceased’s individual accounts in the severance guarantee fund and in the PIS-PASEP fund.
- Tax refundsRefunds of income tax and other taxes paid by the individual.
- Small bank balancesCurrent accounts, savings and investment funds up to the ceiling in art. 2 of Law 6,858/1980, and only where no other asset is subject to probate.
- Who collectsFirst the dependants registered with social security, in equal shares; failing them, the heirs under the Civil Code.
When the order does not replace probate.
The exclusivity rule. For bank, savings and investment balances, art. 2 of Law 6,858/1980 imposes two cumulative conditions: the amount must sit within the statutory ceiling, and no other asset subject to probate may exist in the estate. Decree 85,845/1981 repeats the condition. If there is a flat, a car or a shareholding to divide, the cash goes into probate with everything else.
The ceiling. It is expressed in a 1980 treasury index, so its conversion into today’s reais is settled case by case. We check it before choosing the route.
What never comes out this way. Real estate, vehicles, company quotas and larger investments pass by formal division. For these, art. 611 of the Civil Procedure Code applies: probate must be opened within two months of the death and concluded in the following twelve, subject to extension by the judge. In São Paulo, opening late carries a penalty on the inheritance tax.
Orders inside probate. Once probate is open, releasing a particular sum — to meet estate expenses, fees or the tax itself — is applied for within the same file and depends on the judge’s authorisation. In the simplified procedure, art. 659, § 2, provides that the orders are issued once the decision approving the division becomes final. Different route, different papers: our probate page covers that one.
How we run it.
- Mapping what was leftAccounts, funds, FGTS, PIS-PASEP, refunds and whether any other asset exists. That map decides the route.
- EntitlementWe check whether dependants are registered with Brazilian social security and, failing that, who the heirs are under the Civil Code.
- The applicationFiled with the death certificate, proof of the family link, statements and, where required, a declaration that no other asset exists.
- Submissions and compliancePublic prosecutor where a minor is involved, tax authority where tax is due, and the order served on the bank once granted.
- Switching to probateIf other assets appear, we move to probate — out of court where the heirs agree — without losing the work already done.
What to send for the first review.
Documents that speed up the analysis
With these we can say, in the first conversation, whether the case is a release order or probate — and why.
- Death certificate
- ID and CPF of the deceased
- Documents of dependants and heirs
- Statements of accounts and investments
- FGTS and PIS-PASEP statements
- Final payslips or termination papers
- Latest income tax return
- Title deeds, if any
Informational content under Brazilian Bar Association Rule 205/2021 — it does not replace an assessment of your case. Our fee proposal is put in writing after the initial review.
What clients say on Google.
“From the very start I was looked after exceptionally. The team is attentive and explains every step.”
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Thais T. · GoogleReal client reviews published on Google.
Who leads this work.
Founding partner of Falchet e Marques (OAB/SP 428.777). Head of the real estate practice — titling, adverse possession, contracts and litigation — with postgraduate degrees in Real Estate Law (PUC/SP) and Succession Law (PUC-Campinas); a specialist in probate and estate administration.
Meet Letícia MarquesCommon questions.
Does a court release order replace probate?
Partly, and only in the cases set out in Law 6,858/1980: sums owed by an employer and the balances of FGTS and PIS-PASEP accounts not collected in the holder’s lifetime go to the dependants registered with social security and, failing them, to the heirs named in a court order, independently of probate. For the rest of the estate, probate remains the route.
Which sums can be collected without probate?
Employment sums, public sector pay owed by reason of office or employment, FGTS and PIS-PASEP balances, refunds of taxes paid by the individual and — within the ceiling in art. 2 of Law 6,858/1980 — balances in accounts, savings and investment funds.
The deceased owned a flat in Brazil. Can we avoid probate?
No. Art. 2 of Law 6,858/1980 releases bank balances only where no other asset is subject to probate, and Decree 85,845/1981 repeats the condition. Where there is real estate, a vehicle or company quotas, title passes by formal division in probate.
Who collects, and what changes if a beneficiary is a minor?
The dependants registered with Brazilian social security collect in equal shares; failing them, the heirs under the Civil Code. A minor’s share is deposited in a savings account and becomes available at eighteen, unless the judge authorises its use to buy a home for the minor or to meet subsistence and education costs.
Is inheritance tax due on these sums in São Paulo?
São Paulo State Law 10,705/2000 exempts sums owed by an employer to an employee, sums owed by social security and pension institutions, maintenance awards from court proceedings, and FGTS and PIS-PASEP balances not collected in the holder’s lifetime. Other assets follow the general rule, taxed at 4%.
What does it cost, and how long does the order take?
Fees are quoted before we start, in a written proposal issued after the review. On timing we make no promise: the grant depends on the court, on the submissions required and on how quickly the bank complies.
We live abroad. Can you act without us travelling to Brazil?
Yes. The application is filed electronically and run remotely, with video meetings and correspondence in English. Heirs abroad act through a power of attorney; signed before a foreign notary, it must be apostilled and translated by a sworn translator.
Is money sitting in a Brazilian account?
Tell us what the deceased left and who the beneficiaries are. We say whether a release order will do or probate is required, with a written proposal, within one business day.