Probate in Brazil made simple: from the first step to the distribution
What Brazilian probate involves, which deadlines apply, when a notary can act and when a court is needed, documents, costs and current rules — including CNJ Resolutions 571/2024 and 695/2026 — and the steps for heirs abroad.
Brazilian probate — inventário — identifies assets, rights and debts, deals with inheritance tax and formalises distribution of the estate, which passes on death. In São Paulo, opening the procedure after 60 days from death can trigger a 10% or 20% penalty on ITCMD. The federal procedural deadline is 2 months. The appropriate route may be judicial or notarial; minors, legally incapable interested parties and wills require specific safeguards. A lawyer is mandatory on both routes.
Contents
- What probate is, and why it is compulsory
- Who inherits under Brazilian law
- The 60-day deadline and the penalty
- What may remain unresolved before distribution
- Notary or court: what changed in 2024
- The steps on each route
- Documents to gather
- ITCMD: how the tax is calculated
- Costs and timing
- Heirs and assets abroad
- Debts and special situations
- Planning ahead
- Frequently asked questions
If a relative dies leaving assets in Brazil, the estate must be identified, administered and distributed through the appropriate procedure. Brazilian inventário is not simply the same as executor-led administration in a common-law jurisdiction. There may be court, notarial and limited release-of-funds routes, and a cross-border estate may require coordinated procedures in more than one country. Getting advice early helps identify deadlines and documents without assuming that every asset must remain untouched until the end.
What probate is, and why it is compulsory
Under Civil Code article 1.784, the estate actually passes to the heirs at death, under the principle of saisine. Until distribution, it remains an undivided estate, and each successor's allocation must still be established and formalised. Probate is not an absolute ban on every transaction: court-authorised releases and sales, and the specific notarial sale route under article 11-A of CNJ Resolution 35, may be available subject to conditions. Distribution normally requires the appropriate probate procedure even where everyone agrees, with statutory exceptions for certain assets or claims.
Who inherits under Brazilian law
Article 1.829 of the Civil Code sets the order of succession: descendants first, together with the spouse where the statutory conditions for concurrent inheritance apply, including the relevant marital property regime and separate assets; then ascendants together with the spouse; in their absence, the spouse; and, where no successor with priority exists, collateral relatives up to the fourth degree. A stable-union partner follows the spouse's succession regime under Supreme Court Theme 809, subject to the decision's limits for successions already completed.
Two concepts matter particularly to foreign families. Forced heirship reserves half of the legally calculated succession base where there are necessary heirs; it is not automatically half of every asset owned by the couple. Without necessary heirs, the general restriction to a freely disposable half does not apply. Meação is the survivor's own entitlement under the marital property regime, not necessarily half of every asset. It is distinct from any inheritance the survivor may receive and is not itself a transfer on death.
The 60-day deadline and the penalty
Two deadlines run in parallel and are constantly confused:
Procedural (federal): probate must be opened within 2 months of death and concluded within the following 12 months, extendable by the judge (Civil Procedure Code, article 611). This organises the case; it carries no direct penalty.
São Paulo's opening deadline: an application from day 61 to day 180 after death attracts a penalty of 10% of ITCMD; from day 181, it is 20%, replacing rather than adding to the 10% rate (State Law 10.705/2000, article 21, I). The tax-payment deadline and charges for paying late are separate matters.
Time runs from death, not from the estate administrator's appointment. A notarial appointment deed may help establish when the extrajudicial procedure started, but it does not restart the clock. Opening within 60 days is not the same as a universal requirement to pay tax within that period: payment follows the applicable tax rules, including article 17 of the São Paulo law. Foreign documents should be assessed early, including any apostille, legalisation or translation requirements.
What may remain unresolved before distribution
Delay can complicate administration and access to assets, but restrictions depend on the asset and proposed act. Banks require appropriate authority and title; statutory releases without full probate may be available. Real-estate distribution and registration regularise individual ownership, but an earlier sale may be authorised judicially or under specific notarial conditions. The death of a company member calls for review of its constitutional documents, remaining management and succession or valuation rules: the company is not automatically suspended, and heirs do not automatically become managers. Recording expenses, appointing the proper administrator and accounting for rents can help manage disagreements.
Certain employment claims, FGTS or PIS/Pasep funds, tax refunds and eligible bank balances may be released without full probate under Law 6.858/1980. The type of claim, entitled beneficiaries, other estate assets and statutory limits must be checked. See judicial authorisation to release funds.
Notary or court: what changed in 2024
Extrajudicial probate is done by public deed at a notary's office (cartório de notas), without a lawsuit and without judicial approval: the deed itself is title to register real estate and transfer vehicles. Judicial probate runs in court and is the route where heirs are genuinely in dispute.
CNJ Resolution 571/2024 regulated and expanded notarial options by adding articles 12-A and 12-B to Resolution 35. It is inaccurate to say that every will prevented notarial probate until 2024: some cases were already accepted with judicial supervision. The current requirements must be read together with applicable state rules:
Minor or incapable heir (article 12-A): the deed is allowed provided that the share or marital half belonging to that incapable person is paid as an undivided fraction of each estate asset, with no acts of disposal over their assets (paragraph 1), and with a favourable opinion from the Public Prosecutor's Office, which is a condition of the deed's effectiveness (paragraph 3). Where an unborn child is involved, the deed waits for the birth registration or proof that the child was not born alive (paragraph 2). Any objection sends the matter to the competent court (paragraph 4). In São Paulo the rule entered the state registry regulations through Provision CGJ 60/2024 (item 130-A), with the prosecutor's opinion issued electronically under the relevant Public Prosecutor's Office rules, including Resolution 2.051/2025 where applicable. In São Paulo, withdrawal or movement of money allocated to a minor or incapable heir requires a court order; acceptance of the inheritance by a tutor or curator also requires the judicial authorisation prescribed by the applicable rules.
A will (article 12-B): requires express authorisation from the probate court in proceedings opening and giving effect to a valid and effective will, through a final and unappealable decision, together with agreement and legal assistance. If a minor or legally incapable person is involved, article 12-A safeguards also apply. An invalidated, revoked, lapsed or legally displaced will requires a final judicial finding of invalidity or ineffectiveness under item V. Recognition of a child or another irrevocable declaration in the will bars the route in the situations specified by the resolution. In São Paulo, items 130, 130.1, 130.2 and 130-A of the registry regulations must be read together; a general, unresolved conflict between national and state rules should not be assumed.
What holds for both routes: a lawyer is mandatory (Law 11.441/2007 and Civil Procedure Code, article 610, paragraph 2); on the extrajudicial route the heirs may choose any notary in the country, with no territorial restriction; and a search of the national wills database (CENSEC) is required before starting. Our judicial or extrajudicial probate tool provides an initial screening, not a binding decision.
The steps on each route
On the notarial route, documents are gathered, a notary is chosen, counsel prepares the proposed distribution and ITCMD is assessed under the competent tax legislation. CNJ Resolution 695/2026 removed proof of prior payment as a condition for executing the deed; it did not exempt the transfer or extend payment deadlines. Current São Paulo tax-authority guidance maintains the tax duty to pay before the deed. If a deed is executed without payment, the notary must notify the tax authority within 5 days unless tax legislation provides otherwise. Once the deed is signed and other effectiveness requirements are met, it must be presented to the relevant registries and institutions; property, vehicles, bank assets and company interests require their own steps.
On the judicial route, the initial filing identifies the estate and interested parties; the appointed inventariante administers the estate and accounts for it; declarations, service, valuations where necessary and tax issues lead to a distribution or sole-heir allocation order. Tax payment does not occupy the same stage in every procedure. STJ Theme 1.074 dispenses with prior ITCMD payment for approval and issue of distribution titles in arrolamento sumário, while retaining proof of settlement of taxes on estate assets and income. Arrolamento sumário is available for an agreed distribution among legally capable parties (CPC, article 659). Arrolamento comum covers estates up to 1,000 minimum wages (article 664) and may include an incapable party with everyone's agreement and the Public Prosecutor's Office's agreement under article 665. Each route has its own conditions.
Documents to gather
Incomplete documentation is a common cause of delay. Organise the records available and confirm the requirements for the chosen procedure.
For the deceased: death certificate, ID and CPF, an up-to-date marriage certificate (or birth certificate if unmarried), any prenuptial agreement, proof of last address, recent tax returns and the CENSEC search certificate and any known will. That search alone does not exclude every private will.
For the heirs and the surviving spouse or partner: personal documents, birth or marriage certificates, proof of address, and powers of attorney where anyone is represented.
For the assets: up-to-date title records and property tax notices for real estate; vehicle registration certificates; bank and investment statements as at the date of death; articles of association and financial statements for company quotas; insurance policies and other contracts.
Tax clearance certificates for the deceased and the assets, as applicable.
Check the currency and validity required for each document: there is no single 30-day or 90-day rule for all certificates. Coordinated requests and organised digital copies can reduce duplication. Foreign documents may require an apostille or consular legalisation, a Brazilian public translation and registration, depending on origin, intended use and applicable exemptions.
ITCMD: how the tax is calculated
ITCMD is the state tax on inheritances and gifts. São Paulo's rate under the legislation in force at this review is 4%. The base concerns assets or rights actually transferred, assessed under the valuation and legal criteria applicable to the taxable event. Property-tax records, vehicle tables and financial statements can inform the calculation but do not automatically settle the correct base. The survivor's own property entitlement, exemptions and legally permitted deductions must also be examined.
The survivor's existing meação is not a transfer on death. São Paulo exemptions have separate conditions: examples include a residential property worth up to 5,000 UFESPs where the benefiting family members live and own no other property; property worth up to 2,500 UFESPs where it is the only property transferred; and certain deposits and investments up to 1,000 UFESPs. There is no general 7,500-UFESP estate exemption. Each article 6 category and the appropriate UFESP value must be checked separately. Instalments, where available, have conditions: São Paulo tax-authority guidance provides for up to 12 instalments, each at least 30 UFESPs, with a financing charge. This is not an exemption.
Constitutional Amendment 132/2023 requires progressive taxation, and Supplementary Law 227/2026 introduced general ITCMD rules. Neither automatically replaces São Paulo's 4% rate with 8%: the latter is the current national ceiling, and state taxation depends on legislation valid for the taxable event. Bills are not enacted tax rates. Any increase must also respect the annual and 90-day advance-notice requirements where applicable. Our probate calculator offers an estimate with stated assumptions, not a tax assessment or comprehensive fee quote.
For private pensions, Supreme Court Theme 1.214 prohibits ITCMD on VGBL and PGBL payments to beneficiaries following the holder's death. That tax ruling does not automatically resolve every civil dispute about estate distribution, marital property or misuse of a plan. Life-insurance capital payable on death is not inheritance under Law 15.040/2024, article 116; the former Civil Code article 794 has been repealed. Payment still depends on coverage, beneficiaries and the applicable claims procedure.
Costs and timing: what to budget for
Beyond ITCMD, consider court or notarial charges, certificates, registration, valuations and legal fees. São Paulo judicial distribution fees follow article 4, paragraph 7, of State Law 11.608/2003: bands of 10, 100, 300, 1,000 or 3,000 UFESPs based on the gross estate, including the survivor’s meação. They are not a flat 1.5% fee. Notarial charges follow annual schedules and the acts required. Neither route is always cheaper. Legal fees are agreed in writing; court-fee waivers and public legal assistance have their own eligibility conditions.
The judicial bands correspond respectively to gross estates up to R$50,000; over R$50,000 up to R$500,000; over R$500,000 up to R$2 million; over R$2 million up to R$5 million; and over R$5 million. Each UFESP is worth R$38.42 in 2026.
A documented, agreed estate may progress more quickly than a disputed one, but duration is not guaranteed. Foreign documents, valuations, tax issues, minors or incapable parties, wills and registrations can extend either route. A timetable should follow the initial assessment and be revised as actual requirements arise.
Heirs and assets abroad
An heir abroad can often act without travelling, using a power of attorney with the required form and specific powers. Depending on the document and country, apostille or consular legalisation, public translation and registration may be necessary; applicable treaties and exemptions must also be checked. A Brazilian consular instrument can be an alternative where available, and a CPF generally needs to be arranged for the acts concerned. Assets abroad are not simply included in Brazilian distribution: proceedings in the competent jurisdictions must be coordinated. The governing law is assessed under each jurisdiction's conflict-of-laws rules, not assumed to be the same everywhere. See cross-border probate.
Marital property, debts and other special situations
Meação and inheritance. The survivor’s own entitlement depends on the property regime and asset composition, not an automatic half of every item. It is distinct from any inheritance entitlement.
Estate debts. Before distribution, the estate answers for its obligations; afterwards each heir is liable proportionately and up to the value inherited (CC, articles 1.792 and 1.997). The limit is monetary: liability is not necessarily confined to the same physical assets inherited. Article 1.792 places proof of the excess on the heir unless the probate inventory establishes the inherited value.
Supplemental distribution. Concealed, later-discovered or reserved assets within CPC article 669 may require a supplementary distribution without indiscriminately reopening what was validly completed. The route and tax treatment need assessment.
Assignment of inheritance rights. Before distribution, an heir may assign rights over the hereditary share by public deed, subject to other heirs’ statutory priority and applicable requirements. That is not free disposal of a particular estate asset (CC, articles 1.793 to 1.795).
A declaration of no estate assets. An inventário negativo can formally establish the absence of assets when needed; it is not a distribution of nonexistent property. Where one heir is entitled to the entire estate, assets are allocated to that heir by adjudicação, rather than divided among several people; the applicable formalities and obligations remain.
Assets in other states or abroad. Tax jurisdiction depends on the assets and applicable succession rules. Foreign assets require coordinated proceedings in the competent jurisdictions, while Supplementary Law 227/2026 does not remove the need to examine valid state law and the taxable-event date.
Planning ahead
Preparing documents and decisions in advance can help organise succession, without guaranteeing lower taxes, no probate or no disputes. A will must respect forced heirship where it applies; without necessary heirs, the general half-estate restriction does not apply. Gifts with reserved usufruct transfer bare ownership subject to the deed and legal limits, including the donor's subsistence and protected heirs' shares. São Paulo's two-thirds and one-third valuation rules for bare ownership and usufruct must be considered together with reservation, full or deferred payment and termination of the right; they do not guarantee a one-third tax saving. A family holding company has formation, accounting and tax costs and does not automatically transfer interests to successors, remove probate or shield assets from creditors. Life insurance is governed by coverage and claims requirements, not a promise of immediate cash.
Frequently asked questions
How much does probate cost in Brazil?
São Paulo currently applies a 4% ITCMD rate, with the tax base, the survivor's own entitlement, exemptions and other legal criteria assessed individually. The judicial distribution fee follows the specific UFESP table in article 4, paragraph 7, of State Law 11.608/2003, not a flat 1.5%. Notarial fees follow the applicable schedules. Certificates, registration, possible valuations and agreed legal fees also matter. The most suitable or economical route depends on the case.
What is the deadline to open probate in Brazil and what happens if I miss it?
CPC article 611 sets 2 months from death to open the procedure and the following 12 months for completion, with judicial extensions possible. In São Paulo, applying from day 61 to day 180 can trigger a 10% ITCMD penalty; from day 181, it is 20%, not the sum of both rates. Tax-payment deadlines and late-payment charges are separate. Appointment of an administrator does not restart the clock running from death.
Can probate be done without going to court in Brazil?
Yes, where the notarial requirements are met; agreement alone is not sufficient in every case. A deed does not ordinarily need judicial confirmation, but a will requires the specific final judicial authorisation under article 12-B. Minors or legally incapable parties require article 12-A safeguards, including their undivided entitlement in each asset, no disposal of their assets and a favourable Public Prosecutor's Office opinion as a condition of effectiveness. Disputes can require court proceedings.
Does an heir living abroad have to travel to Brazil?
Often not. Representation requires a power of attorney with the appropriate form and specific powers. Foreign documents may need apostille or consular legalisation, public translation and registration, subject to their origin, purpose, treaties and exemptions; an eligible Brazilian consular instrument may provide another route. The CPF and identification requirements for the intended acts should be arranged early. Remote attendance depends on the procedure and accepted documentation.
Do I need a Brazilian lawyer for probate?
Yes. A lawyer or public defender is mandatory for both judicial and notarial probate. At the notary's office, the professional assists the interested parties and signs the deed. The role includes assessing the procedure, documents, distribution and tax obligations, without guaranteeing an outcome or completion date.
What happens to assets located outside Brazil?
Brazilian authorities deal with distribution of the assets within their succession jurisdiction; assets abroad require coordination with the competent foreign jurisdiction and its conflict-of-laws rules. They cannot simply be added to the Brazilian deed or court distribution. More than one proceeding may be necessary. Tax analysis must consider the taxable-event date, Supplementary Law 227/2026 and valid state legislation rather than assuming that the supplementary law alone settles every liability.
Do you act outside São Paulo?
Yes. Judicial jurisdiction is assessed under CPC article 48, including cases with no certain domicile or a domicile abroad. A notary can be chosen freely for the notarial route, subject to the remaining requirements. We can provide remote assistance and work with local correspondents where necessary. Tax jurisdiction and state legislation must be checked for each asset and transfer.
Does a minor or legally incapable heir prevent notarial probate?
Not absolutely. Article 12-A of CNJ Resolution 35 requires the minor's or incapable person's inheritance or marital-property entitlement to be an undivided share in each asset, with no disposal of their assets. A favourable Public Prosecutor's Office opinion is a condition of the deed's effectiveness. There are additional rules for an unborn child and objections. Disability or advanced age does not automatically mean legal incapacity.
Can an estate with a will use notarial probate in São Paulo?
Yes, subject to article 12-B of CNJ Resolution 35: express, final judicial authorisation in proceedings opening and giving effect to a valid and effective will, agreement and legal assistance. Article 12-A safeguards also apply to minors or incapable parties. Recognition of a child or other irrevocable declarations bar the route in the cases specified by the resolution. São Paulo registry items 130 to 130-A must be read together rather than treated as a general conflict.
Are private pensions and life insurance included in probate?
Life-insurance capital payable on death is not inheritance under Law 15.040/2024, article 116; the former Civil Code article 794 has been repealed. Supreme Court Theme 1.214 prohibits ITCMD on VGBL and PGBL payments to beneficiaries following the holder's death. That tax ruling does not automatically determine every civil question about distribution, marital property or misuse of a plan.
Organising matters early helps avoid complications
Starting early helps identify deadlines, collect documents and assess alternatives without relying on a promised saving or completion date. At Falchet e Marques Sociedade de Advogados, in São Paulo, we handle judicial and notarial probate, cross-border estates and succession planning, including assistance in English. The initial review starts with the death certificate and a preliminary asset list; a written legal-fee proposal follows that analysis.
Talk to our team on WhatsApp: +55 11 95901-1854 — to assess the next steps and deadlines for your case.
Sources checked on 7 September 2026: Brazilian Civil Code, articles 548, 549, 1.784, 1.792–1.795, 1.829, 1.845–1.847 and 1.997; Civil Procedure Code, articles 23, 48, 98, 610, 611, 617–619, 659, 664, 665 and 669; Law 6.858/1980; Law 15.040/2024, article 116; São Paulo State Law 10.705/2000, articles 6, 9, 16, 17 and 21; State Law 11.608/2003, article 4, paragraph 7; CNJ Resolution 35/2007 as amended by Resolutions 571/2024 and 695/2026; São Paulo registry regulations, items 130–130-A; MPSP Resolution 2.051/2025; São Paulo tax-authority guidance on deeds executed without prior payment; Constitutional Amendment 132/2023 and Supplementary Law 227/2026; Supreme Court Themes 809 and 1.214; STJ decisions on estates with foreign assets. Official portals: planalto.gov.br, atos.cnj.jus.br, tjsp.jus.br, mpsp.mp.br, portal.stf.jus.br, stj.jus.br, portal.fazenda.sp.gov.br and al.sp.gov.br.