Probate in Brazil made simple: from the first step to the distribution
What Brazilian probate is, the deadline that starts on the day of death, when a notary can do it and when a court must, what documents to gather, and how it works when an heir lives abroad.
Brazilian probate — inventário — identifies the deceased's assets, debts and rights, settles the inheritance tax and transfers the estate to the heirs. In São Paulo it must be applied for within 60 days of death, or the tax carries a 10% to 20% penalty. It runs either at a notary's office (faster) or in court, and since CNJ Resolution 571/2024 the notarial route is no longer barred where an heir is a minor, legally incapable, or where there is a will — subject to conditions. A Brazilian lawyer is mandatory either way.
Contents
- What probate is, and why it is compulsory
- Who inherits under Brazilian law
- The 60-day deadline and the penalty
- What stays frozen until probate ends
- Notary or court: what changed in 2024
- The steps on each route
- Documents to gather
- ITCMD: how the tax is calculated
- Heirs and assets abroad
- Planning ahead
- Frequently asked questions
- The full guide (PDF, in Portuguese)
If a relative has died leaving property in Brazil, the first thing to understand is that Brazil has no executor-led administration in the common-law sense. There is a single court or notarial procedure, called inventário, that lists the estate, pays a state inheritance tax and formally allocates each asset to each heir. Nothing moves until it is done — and a clock starts on the day of death.
What probate is, and why it is compulsory
Under article 1.784 of the Civil Code, the estate passes to the heirs at the moment of death. But that transfer is theoretical at first: in practice nothing can be sold, transferred or registered until probate is concluded. It is probate that states, with legal effect, who received what. Article 610 and following of the Civil Procedure Code make it compulsory whenever there are assets to distribute — even where every heir agrees.
Who inherits under Brazilian law
Brazil applies a statutory order of succession (Civil Code, article 1.829): first descendants, concurrently with the surviving spouse; then ascendants, also concurrently; then the spouse alone; and finally collateral relatives up to the fourth degree. Since 2017 a stable-union partner inherits on the same terms as a spouse (Supreme Court, Theme 809, RE 878.694).
Two features surprise foreign clients. First, forced heirship: descendants, ascendants and the spouse are herdeiros necessários and are entitled to the legítima, half of the estate (articles 1.845 and 1.846). A will can only dispose freely of the other half. Second, meação: depending on the marital property regime, half of the assets acquired during the marriage already belongs to the surviving spouse in their own right. That half is not inheritance, is not distributed and is not taxed — confusing the two is one of the most expensive mistakes in a Brazilian estate.
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.
Tax (São Paulo state): probate must be applied for within 60 days of death. Beyond that, ITCMD is assessed with a 10% penalty, rising to 20% if the delay exceeds 180 days (State Law 10.705/2000, article 21, I), plus interest and monetary adjustment.
For families abroad, the 60-day figure is the one to act on. Gathering apostilled documents from another country takes weeks, so the practical advice is to instruct Brazilian counsel immediately and file within the window even if the estate is not yet fully mapped.
What stays frozen until probate ends
The cost of delay is not only the penalty. While the distribution is not concluded and registered, bank accounts stay blocked — no balance or investment is released without a court order or a formal distribution document. Real estate cannot be sold, because the title record still names the deceased. If the deceased was a managing partner, company decisions can stall until the quotas are allocated. And, with no one formally in charge, disagreements between heirs grow month by month.
Where the only issue is money sitting in a Brazilian bank — a balance, a severance fund, a tax refund — there is a faster route: a judicial authorisation to release funds, which avoids full probate in specific situations.
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.
Until 2024, two situations sent a file to court automatically: a minor or legally incapable heir, and the existence of a will. CNJ Resolution 571/2024 changed that by adding articles 12-A and 12-B to CNJ Resolution 35/2007:
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 Joint Resolution PGJ-CGMP 1.919/2024.
Will (article 12-B): the deed is allowed, but it requires express authorisation from the probate court in proceedings opening and giving effect to a valid will, with a final and unappealable judgment, and all interested parties must be legally capable, in agreement and represented by counsel. An honest caveat: in São Paulo this provision conflicts with a narrower state rule (item 130.1 of the state registry regulations) and the conflict is unresolved, so acceptance varies between notaries. Checking with the chosen notary before assembling the file is essential.
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.
The steps on each route
On the extrajudicial route the sequence is short: gather documents; choose the notary; counsel drafts the deed of inventory and distribution; the ITCMD is declared and paid; the deed is executed by all parties; and it is then registered with the relevant bodies — the Real Estate Registry for property, the traffic department for vehicles, banks and commercial registries for the rest. Without that final registration step the distribution is not complete.
On the judicial route: initial petition identifying the deceased, the heirs and the assets; appointment of an inventariante, who administers the estate and accounts for it (articles 617 to 619); first declarations; service on the heirs and the tax authority; valuation of assets where needed; final declarations; assessment and payment of the tax; and judgment approving the distribution, followed by issue of the formal de partilha to be registered. Faster tracks exist even in court: arrolamento sumário where all heirs are capable and in agreement (article 659), and arrolamento comum for estates up to 1,000 minimum wages.
Documents to gather
Incomplete paperwork, not the law, is what delays most estates.
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 certificate showing whether a will exists.
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.
Many of these certificates are valid for only 30 to 90 days and some take days to issue, so request everything in parallel at the outset. Documents issued abroad additionally need an apostille and a sworn translation.
ITCMD: how the tax is calculated
ITCMD is the state tax on inheritances and gifts, and it is usually the largest cost. In São Paulo the rate is 4% of the value transferred (State Law 10.705/2000, article 16), on a base equal to the market value of the assets at the date of death (article 9). Real estate is valued at reference or market value, vehicles by the standard price table, investments by balance, company quotas by the value of the participation, often with an expert report.
Three points genuinely reduce the bill. The surviving spouse's meação is not taxed. There are exemptions in article 6 of the state law — among them a residential property worth up to 7,500 UFESPs where the beneficiaries live and own no other property, and an estate whose total assets do not exceed 7,500 UFESPs; because the UFESP unit is adjusted annually, the current threshold should be checked. And the tax can be paid in instalments in São Paulo.
One update worth tracking: the flat 4% rate may change. Constitutional Amendment 132/2023 and Supplementary Law 227/2026 made progressive ITCMD rates mandatory nationally, up to 8%, but this depends on state legislation that São Paulo has not yet enacted — and under the anteriority rule a law published in 2026 would only take effect in 2027. To estimate figures, use our probate calculator.
On private pensions: in Theme 1.214 (RE 1.363.013, decided on 16 December 2024) the Supreme Court held that it is unconstitutional to levy ITCMD on payments of VGBL and PGBL plans to beneficiaries on the death of the plan holder. Life insurance proceeds are likewise not treated as inheritance and pass directly to the named beneficiary (Civil Code, article 794).
Heirs and assets abroad
Three practical points dominate cross-border estates. First, an heir abroad rarely needs to travel: a power of attorney with specific powers, signed before a notary, apostilled under the Hague Convention and sworn-translated in Brazil, allows Brazilian counsel to act. Second, every heir needs a CPF tax number to appear in the deed and receive assets. Third, assets outside Brazil are not settled in the Brazilian proceeding: Brazilian courts have exclusive jurisdiction over estate proceedings concerning assets located in Brazil, and foreign assets follow the law of their own jurisdiction, which usually means two parallel processes. See our page on cross-border probate.
Planning ahead
The best probate is the one that arrives organised. A will can direct the freely disposable half of the estate and prevent disputes. Lifetime gifts, often with a reserved usufruct, bring the transfer forward — in São Paulo the tax base is two thirds of the asset's value for the bare ownership and one third for the usufruct (article 9, paragraph 2), so the gain lies in organising the succession rather than in a nominal rate. A family holding company can simplify management and succession, though it needs case-by-case analysis. And life insurance gives the family immediate liquidity outside the estate.
Frequently asked questions
How much does probate cost in Brazil?
The largest item is usually ITCMD, the state inheritance tax. In São Paulo it is 4% of the value transferred (State Law 10.705/2000, article 16) and it falls only on the inheritance, never on the surviving spouse's own half of the marital property. Add the court fee of 1.5% of the case value on the judicial route (State Law 11.608/2003, article 4, as raised by Law 17.785/2023) or notary fees on the extrajudicial route, which are usually lower. Then come certificates, any valuation of assets and legal fees, freely agreed and quoted in writing after the file is reviewed.
What is the deadline to open probate in Brazil and what happens if I miss it?
Two different deadlines run at once. The procedural one, in article 611 of the Civil Procedure Code, requires probate to be opened within 2 months of death and concluded within the following 12 months, extendable by the judge. The tax one is what costs money in São Paulo: probate must be applied for within 60 days, failing which ITCMD is assessed with a 10% penalty, rising to 20% if the delay exceeds 180 days (State Law 10.705/2000, article 21, I), plus interest and monetary adjustment.
Can probate be done without going to court in Brazil?
Yes, whenever the heirs are in agreement. Extrajudicial probate is done by public deed at a notary's office, needs no judicial approval and already serves as title to register real estate and transfer vehicles. Since CNJ Resolution 571/2024 it is no longer barred where an heir is a minor or legally incapable, provided that heir's share is paid as an undivided fraction of each asset and the Public Prosecutor's Office issues a favourable opinion. Genuine disputes between heirs still go to court.
Does an heir living abroad have to travel to Brazil?
Usually not. An heir abroad can act through a Brazilian lawyer under a power of attorney with specific powers, signed before a notary, apostilled under the Hague Convention and sworn-translated in Brazil. The heir will also need a CPF tax number to appear in the deed and receive assets. Foreign documents such as marriage, birth and death certificates follow the same apostille and sworn translation route, which is worth starting early because it is the step that most often delays a cross-border estate.
Do I need a Brazilian lawyer for probate?
Yes. A lawyer is mandatory on both routes, judicial and extrajudicial (Law 11.441/2007 and Civil Procedure Code, article 610, paragraph 2). At the notary's office the lawyer advises the heirs and signs the deed. Beyond the legal requirement, the lawyer is the one who assesses which route is cheaper, calculates the tax and prevents mistakes that are expensive to undo later.
What happens to assets located outside Brazil?
Brazilian courts have exclusive jurisdiction over estate proceedings involving assets situated in Brazil, and assets abroad are settled under the law of the country where they are located. That normally means two parallel proceedings. On the tax side, ITCMD is a state tax and Supplementary Law 227/2026 provided the statutory basis for taxing transfers involving assets abroad, so the position should be checked before assets move.
Do you act outside São Paulo?
Yes. Judicial probate runs at the court of the deceased's last domicile, but an extrajudicial deed may be drawn up at any notary's office in the country, and we run the file remotely, with digital meetings and local agents under our instruction when the case is heard elsewhere. One caveat: ITCMD is a state tax, so property in other states follows that state's legislation.
The full guide (PDF, in Portuguese)
This page is the English version of our firm's 28-page guide Inventário Sem Mistério. The PDF exists only in Portuguese — there is no English edition, so it is offered here for readers who work in Portuguese or want to pass the material to a Brazilian relative or adviser. Everything essential from it is set out above, revised and updated in August 2026.
Download the full guide in Portuguese (PDF)
The PDF predates CNJ Resolution 571/2024 and states that an incapable heir or a will forces the judicial route. That has changed, as explained above. Where the PDF differs from this page, this page prevails — including on the São Paulo penalty rates, the state tax rate and the treatment of VGBL and PGBL plans.
Acting early costs less — in money and in stress
Most probate problems come not from the law but from delay: the tax clock runs, assets stay frozen, and what was simple becomes a penalty or a family dispute. A well-run estate does the opposite — it picks the cheaper route, meets the deadlines, assesses the right tax and releases the assets. At Falchet e Marques Sociedade de Advogados, a São Paulo firm on Avenida Paulista, we handle judicial and extrajudicial probate and cross-border estates, working in English with heirs abroad. The initial review starts with the death certificate and a list of assets; fees are quoted in writing after that analysis.
Talk to our team on WhatsApp: +55 11 95901-1854 — and open the estate within the deadline.
Sources checked on 16 August 2026: Brazilian Civil Code, articles 794, 1.784, 1.792, 1.829, 1.845, 1.846 and 1.997; Civil Procedure Code, articles 23, 610, 611, 617 to 619, 659 and 669; Law 11.441/2007; São Paulo State Law 10.705/2000, articles 6, 9, 16 and 21; São Paulo State Law 11.608/2003, article 4, as amended by Law 17.785/2023; CNJ Resolution 571/2024 and CNJ Resolution 35/2007, articles 12-A and 12-B; Provision CGJ 60/2024 (item 130-A, São Paulo registry regulations); Joint Resolution PGJ-CGMP 1.919/2024; Constitutional Amendment 132/2023 and Supplementary Law 227/2026; Supreme Court, Theme 809 (RE 878.694) and Theme 1.214 (RE 1.363.013, 16 December 2024). Portals: planalto.gov.br, atos.cnj.jus.br, portal.stf.jus.br, legislacao.fazenda.sp.gov.br, al.sp.gov.br.