Probate deadline and penalty in São Paulo, Brazil
The deadline to start probate is different from the deadline to pay ITCMD. In São Paulo, delays can have different consequences: we explain which dates and documents need to be checked.
5.0 · 18 Google reviewsThere are separate rules. The procedural deadline comes from article 611 of the Code of Civil Procedure: probate must start within two months of death and conclude in the following 12 months, subject to a court extension. The tax rule in article 21(I) of São Paulo Law 10.705/2000 imposes a penalty of 10% of ITCMD if probate is not requested within 60 days, rising to 20% after 180 days. Extending the court deadline does not automatically remove this penalty. Payment of the tax has its own deadlines.
Where the deadline usually bites.
- The 60-day period is still runningWe identify the documents and appropriate application to start in time. An informal enquiry does not open probate.
- The deadline has passedWe check the dates, calculate the applicable tax and penalty, and organise the next steps. Late probate remains possible.
- Penalty charged and contestableNot every assessment is correct. We check the tax base, the valuation of assets and the treatment applied.
- An heir will not cooperateAn heir entitled to apply can request court probate without waiting for everyone to sign an agreed distribution.
- Questions about exemptionsResidential property and the sole property transferred have different exemptions, with UFESP thresholds and conditions that must be met together.
- Notary office or courtAgreement allows the notarial route to be assessed, subject to its requirements. CNJ Resolution 571/2024 permits certain cases involving a minor or a person lacking legal capacity, with specific safeguards.
What the delay costs, in numbers.
The article 21(I) penalty applies to the tax due, not directly to the estate's value. São Paulo currently charges ITCMD at 4% under article 16 of Law 10.705/2000. Illustrative example: if ITCMD is R$40,000, a 10% penalty adds R$4,000; a 20% penalty adds R$8,000. The 10% and 20% penalties are not added together. Late payment can result in other charges.
Payment is a separate obligation. Article 17 sets 30 days after the decision approving the calculation or ordering payment, with a general limit of 180 days from death, subject to a court extension for good cause. Late payment can attract interest and applicable penalties; this exception is distinct from the late-opening penalty. The Supreme Court's Súmula 542 recognises the constitutionality of state penalties for delays in starting or completing probate, but does not validate every individual assessment.
The São Paulo legislation checked on 5 September 2026 still sets a 4% rate. Any change to progressive rates requires checking the applicable law, commencement provisions and timing rules. A bill does not change the tax by itself or mean that every inheritance will be taxed at 8%.
How we run the case.
- Identifying the estateWe review assets, debts, heirs, the marital property regime and any will to assess the route and obligations, without guaranteeing the lowest cost in every case.
- The appropriate applicationWe gather essential documents and check which act establishes the start of each route. Missing documents can be supplied later where the procedure allows.
- Calculating ITCMD and exemptionsValuation of assets, exemption bands in state tax units and verification of the tax base before any payment.
- Choosing the routeWe assess notarial probate where the parties agree and the requirements are met; disputes require court proceedings. For a minor or a person lacking legal capacity, article 12-A of CNJ Resolution 35 requires an undivided share in each asset, a favourable opinion from the Public Prosecutor's Office and other safeguards. CNJ Resolution 695/2026 removes the requirement to present proof of ITCMD payment before the deed is executed, but does not cancel or defer tax obligations. São Paulo's tax authority maintains its prior-payment guidance and requires notification within five days when a deed is executed without payment.
- Distribution and formalisationUnder Brazilian law, the inheritance passes at death. Probate identifies and formalises the rights through a court document or notarial deed, followed by the relevant registrations and updates.
What to bring to the first conversation.
Documents that speed up the review
We need the dates and available documents to assess the deadlines. Bring what you have; we will identify what is missing.
- 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
Initial review of the case, with our proposal presented in writing. Informational content under Brazilian Bar Association Rule 205/2021 — it does not replace an assessment of your case.
What clients say on Google.
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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?
Article 611 of the Code of Civil Procedure sets two months from death to start proceedings and the following 12 months to complete them, with a court extension possible. São Paulo's penalty uses a different rule: article 21(I) of Law 10.705/2000 requires the probate application within 60 days of death. Two months must not automatically be treated as 60 days.
How much is the penalty after 60 days?
São Paulo Law 10.705/2000 sets a penalty of 10% of ITCMD if probate is not requested within 60 days of death, increasing to 20% once 180 days have passed. The penalty is based on the tax, not the entire estate. The 10% and 20% rates are not cumulative.
How is the late-probate penalty calculated?
First, ITCMD is assessed using the transferred assets, taxable base, exemptions and applicable rate. A 10% or 20% penalty is then applied according to the dates. The calculator provides an estimate; it does not replace the tax return, review of an assessment or other late-payment charges.
We are already past the deadline. Is it still worth filing now?
Yes. Delay does not prevent probate and may increase its cost. In addition to the late-application penalty, article 17 payment deadlines, their exceptions and possible interest and penalties must be checked. Filing now does not erase a penalty already due.
Can the penalty be challenged?
An assessment may be reviewed for errors in dates, arithmetic, the taxable base or the application of the law, among other relevant grounds. The Supreme Court's Súmula 542 accepts the constitutionality of the late-probate penalty: merely alleging that every such penalty is unconstitutional is insufficient. A challenge does not guarantee a reduction either.
Is ITCMD in São Paulo going up to 8%?
São Paulo Law 10.705/2000, checked on 5 September 2026, still sets a 4% rate. Progressive bands depend on the legislation in force and its timing rules; a proposal or news report does not change an assessment by itself. A 2%–8% scale should not be presented as already in force, nor should every inheritance be said to attract the maximum rate.
Do you act for heirs outside Brazil?
Yes. We assess court jurisdiction and the notarial route based on the deceased's domicile, the assets and the applicable rules. Domicile alone does not resolve every case, especially cross-border matters. Video meetings, representation and electronic signatures can be arranged where the relevant act allows them.
How many days since the death?
Tell us the date of death and whether a formal application has already been made. We will assess the deadlines, route and documents. An enquiry or appointment does not replace opening probate.