Probate with a minor or incapacitated heir
CNJ Resolution 571/2024 opened the notary route for probate involving a minor — with an ideal share reserved in each asset and a favorable Public Prosecutor's Office opinion. When it is not possible, judicial probate protects the incapacitated heir. In person at Avenida Paulista or remotely.
5,0 · 18 Google reviewsCNJ Resolution 571/2024 changed the landscape: probate with a minor or incapacitated heir can be done at the notary when all heirs agree, the minor's ideal share is reserved in each asset and the Public Prosecutor's Office issues a favorable opinion (art. 12-A of CNJ Resolution 35/2007, added by Resolution 571/2024). Where there is a dispute or the incapacitated heir's interest is at risk, the judicial route remains — and protects the minor with their own representation.
The two routes for probate involving an incapacitated heir.
- Extrajudicial probate with a minor (Res. 571/2024)A notary deed is possible with total agreement, the minor's ideal share reserved in each asset and a favorable MP opinion — the change that speeds things up.
- Judicial probate with an incapacitated heirWhen there is a dispute, when agreement fails or when the minor's interest requires the court route — with a special curator and MP participation.
- Ideal share in each assetThe Resolution 571/2024 rule: the minor receives a proportional fraction in each asset, not one whole asset — the design the notary requires.
- Public Prosecutor's Office opinionThe MP oversees the incapacitated heir's interest at the notary and in court — a favorable opinion is a precondition of the extrajudicial route.
- Representation of the incapacitated heirParents, guardian or special curator: who represents the minor in the probate — and when a conflict of interest requires a special curator.
- Sale of the minor's assetSelling an incapacitated person's asset requires judicial authorization — a probate involving a sale needs it.
- Coordination with general successionProbate with a minor follows the general rules — see extrajudicial probate and the succession practice.
CNJ Resolution 571/2024 opened the notary route — with precise requirements.
Before CNJ Resolution 571/2024, the rule was that probate with a minor or incapacitated heir was judicial by definition. The resolution opened the extrajudicial route with three cumulative requirements: total agreement among all heirs, the minor's ideal share reserved in each estate asset, and a favorable opinion from the Public Prosecutor's Office.
The ideal share is the point that confuses most: the minor does not receive one whole asset equivalent to their portion — they receive a proportional ideal fraction in each asset. The division must be redesigned to accommodate that rule — and it is what the notary and the MP verify.
When the requirements are missing — one heir disagrees, the ideal share does not fit, the MP issues a contrary opinion — the route is judicial probate. There, the minor has their own representation (parents, guardian or a special curator when there is a conflict of interest) and the MP takes part in the division to protect the incapacitated heir.
Selling an incapacitated person's asset during the probate requires judicial authorization even when the probate runs at the notary — protection of the minor's property is a public-order rule. A division designed to anticipate the sale avoids a parallel proceeding.
How we run the case.
- Check the notary route's viabilityAgreement, ideal share in each asset and the expectation of the MP's opinion — the three requirements.
- Design the division with the ideal shareThe minor's proportion reserved in each asset — the format the resolution requires.
- Obtain the MP's opinionThe favorable opinion is a precondition of the extrajudicial route — we arrange the representation.
- Draw the deed or conduct the judicial caseNotary deed or court action with proper representation of the minor.
- Authorize the sale when there is oneSelling an incapacitated person's asset has its own route — a judicial request coordinated with the probate.
What to bring to the first conversation.
Documents that speed up the review
The deceased's and the heirs' certificates, the asset documents and the proof of agreement speed up the probate.
- Death certificate of the estate's author
- Heirs' birth or marriage certificates
- Documents of the estate's assets
- Documents of the minor or incapacitated heirs
- Custody or guardianship order, if any
- Valuation of the estate's assets
- Tax clearance certificates for the deceased and the estate
- Division agreement among the adult heirs
Case review and a written proposal before any step is taken. 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.”
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Who leads this area.
Founding partner at Falchet e Marques (OAB/SP 428.777). Postgraduate in Real Estate Law (PUC/SP) and Succession Law (PUC-Campinas), she leads the real estate, family and probate practice. Straight to the point, no legalese.
Meet Letícia MarquesCommon questions.
Can probate with a minor heir be done at the notary?
Yes, since CNJ Resolution 571/2024 — with three cumulative requirements: total agreement among all heirs, the minor's ideal share reserved in each asset, and a favorable opinion from the Public Prosecutor's Office. Missing any of them, the route is judicial.
What is the ideal share in each asset?
It is the Resolution 571/2024 rule: the minor receives a proportional fraction in each estate asset — not one whole asset equivalent to their portion. The division must be designed to reserve that proportion in every asset.
Does the Public Prosecutor's Office take part in notarial probate?
Yes — the MP's favorable opinion is a legal precondition of the extrajudicial route with an incapacitated heir. The notary requests it; the MP's statement oversees the minor's interest.
Who represents the minor in the probate?
As a rule, the parents or the legal guardian. When there is a conflict of interest between the representative and the minor — a parent who is also an heir and may dispute the share — the judge or the notary requires a special curator.
Can an asset of the minor be sold during the probate?
Only with judicial authorization — even in extrajudicial probate. Selling an incapacitated person's asset is an act requiring the judge's authorization, and the division should be designed to anticipate the sale so it does not generate a parallel proceeding.
What if one heir does not agree with the division?
Without total agreement, the notary cannot proceed — the route is judicial probate, with service of process, the minor's representation and MP participation. A single heir's dissent defeats the extrajudicial route.
Can the probate with a minor go to the notary — or does it need a judge?
Send the list of heirs and assets: we assess the three Resolution 571/2024 requirements and indicate the correct route, with a written proposal.