Probate deadline and penalty in São Paulo, Brazil
Two deadlines frighten families, and almost nobody explains that they are not the same thing: the procedural one and the tax one. Only one triggers a penalty — and that is the one people miss.
5,0 · 18 Google reviewsThere are two separate clocks. The procedural one comes from art. 611 of the Civil Procedure Code: probate must be opened within 2 months of death and completed in the following 12 — and the judge may extend it. The tax one comes from art. 21, I of São Paulo State Law 10,705/2000: if probate is not applied for within 60 days, the inheritance tax (ITCMD) carries a 10% penalty, rising to 20% beyond 180 days. The penalty attaches to the tax, not the case — and it cannot be extended.
Where the deadline usually bites.
- The 60 days still runningThe death was recent and nobody knows where to start. Filing now stops the clock.
- Deadline already missedPast 60 or 180 days. The penalty applies, but the final figure still depends on good choices.
- Penalty charged and contestableNot every assessment is correct. We check the tax base, the valuation of assets and the treatment applied.
- An heir who will not cooperateOne heir withholding a signature does not prevent filing, and there are routes that contain the penalty.
- Doubts about exemptionResidential property and sole property have their own exemption bands in São Paulo, measured in state tax units.
- Notary or courtWhere there is consensus and no minors, the out-of-court route is usually faster — and speed here is money.
What the delay costs, in numbers.
The art. 21, I penalty applies to the amount of tax, not to the value of the estate — the most common confusion. In São Paulo the ITCMD rate is 4% (art. 16 of Law 10,705/2000). On an estate with R$ 40,000 of tax, going past 60 days adds R$ 4,000; past 180 days, R$ 8,000. That is money leaving the estate for nothing in return.
There is also art. 17: the tax must be paid within 30 days of the calculation being approved and never beyond 180 days from the date of death — after that, interest and further penalties accrue. And the constitutionality of the state penalty is settled by Precedent 542 of the Supreme Court.
A warning about what circulates online: as at August 2026 São Paulo still applies a flat 4% rate. Constitutional Amendment 132/2023 and the implementing legislation made progressive rates mandatory, capped at 8%, but that depends on state law — and the São Paulo bill is still in progress. Under the annual precedence rule, a law passed in 2026 would only take effect from 2027. Many publications announce bands of 2% to 8% as if in force. They are not.
How we run the case.
- Mapping what existsAssets, debts, heirs and marital property regime: this defines tax, exemptions and the cheapest route.
- Filing to stop the clockApplying within the 60 days is what prevents the penalty. We do it even with paperwork incomplete.
- Calculating ITCMD and exemptionsValuation of assets, exemption bands in state tax units and verification of the tax base before any payment.
- Choosing the routeNotary where there is consensus and no minors; court otherwise. The choice changes both timing and cost.
- Distribution and transferDeed of distribution, registration on the property record and effective transfer of assets to the heirs.
What to bring to the first conversation.
Documents that speed up the review
To tell you whether the penalty can still be avoided and what probate will cost, very little is essential. Bring what you have — we gather the rest together.
- Death certificate
- ID documents of the deceased and the heirs
- Marriage certificate and prenuptial agreement, if any
- Up-to-date property records
- Property tax bills and assessed values
- Bank statements, investments and balances
- Vehicle documents and company shareholdings
- Will, if one exists
First review at no cost, with no obligation. Informational content under Brazilian Bar Association Rule 205/2021 — it does not replace an assessment of your case.
What clients say on Google.
“From the very start I was looked after exceptionally. The team is attentive and explains every step.”
Amanda M. · Google“Excellent, highly qualified professionals. I highlight the professionalism, the service and the honesty.”
Rita G. · Google“Very polite, patient, always with precise, accurate answers. I recommend them with no reservations!”
Thais T. · GoogleReal client reviews published on Google.
Who leads this area.
Partner in charge of real estate and probate matters (OAB/SP 428.777). Postgraduate in Real Estate Law (PUC/SP) and Succession Law (PUC-Campinas). Notário Luiz Gama Medal (Santo André City Council). Fluent in English.
Meet Letícia MarquesArticles that go deeper.
Common questions.
What is the deadline to open probate in São Paulo?
There are two. Art. 611 of the Civil Procedure Code requires probate to be opened within 2 months and completed in the following 12, and the judge may extend it. The one that triggers a penalty is different: art. 21, I of State Law 10,705/2000 requires the application within 60 days. Confusing the two is the costliest mistake here.
How much is the penalty after 60 days?
In São Paulo, 10% of the tax if probate is not applied for within 60 days of death, rising to 20% if the delay exceeds 180 days (art. 21, I of Law 10,705/2000). The penalty attaches to the tax, not to the value of the estate — the most frequent misunderstanding.
How is the late-probate penalty calculated?
First the ITCMD is assessed: tax base of the assets, exemptions and the 4% rate. The 10% or 20% is then applied to that tax, depending on the delay. Our calculator estimates it in minutes, and checking the tax base usually cuts the final figure more than arguing the penalty.
We are already past the deadline. Is it still worth filing now?
Yes, urgently: the 10% penalty only becomes 20% after 180 days — every week counts. Art. 17 also provides that the tax should not be paid beyond 180 days from death, after which interest and penalties accrue.
Can the penalty be challenged?
The constitutionality of the penalty is settled by Precedent 542 of the Supreme Court, so that argument fails. What pays off is reviewing the tax base, the valuation of the assets and the treatment of exemptions — that is where the final figure comes down.
Is ITCMD in São Paulo going up to 8%?
As at August 2026 São Paulo still applies a flat 4% rate. Constitutional Amendment 132/2023 made progressive rates mandatory, capped at 8%, but the change depends on state legislation and the São Paulo bill is still in progress. Under the annual precedence rule, a law passed in 2026 would only apply from 2027. Publications already announcing 2% to 8% bands in São Paulo are describing a scenario that is not yet in force.
Do you act for heirs outside Brazil?
Yes. Probate runs where the deceased was domiciled and we handle it remotely, with electronic signature and video meetings. We regularly act for heirs in other states and abroad.
How many days since the death?
If you are still within the 60 days, the penalty clock can be stopped this week. Tell us the situation and we will run the first review at no cost. We reply within one business day.