Succession Law assets protected, family at peace.

Probate (inventário) is the procedure to ascertain the assets, debts and heirs of the deceased and to divide the estate. It is mandatory whenever there are assets to transfer — without it, the heirs cannot sell, transfer or regularize the deceased's assets. The deadline to open probate is 60 days counted from the death (art. 611 of the Code of Civil Procedure), and delay generates a penalty on the ITCMD.

Yes. Extrajudicial probate is carried out by public deed at the notary office, without a court action, where the heirs agree and a lawyer assists. CNJ Resolution 571/2024 added art. 12-A to CNJ Resolution 35/2007, so a minor or legally incapable heir no longer bars the deed, provided that heir’s share or marital half is paid as an undivided fraction of each estate asset and the Public Prosecutor’s Office issues a favourable opinion. Where there is a will, art. 12-B allows the deed only after court authorisation in the action to open and give effect to the will, with a final, unappealable judgment. Article 610 of the Code of Civil Procedure was not amended: the broadening comes from an administrative act of the CNJ.

Probate must be opened within 60 days of the death (art. 611 of the Code of Civil Procedure). In São Paulo, opening it after that deadline generates a penalty on the ITCMD (State Law 10.705/2000): the São Paulo tax authority applies a surcharge on the tax due when probate is commenced late. For this reason, even if the division of the estate takes time, it is important to start the procedure within the deadline to avoid the penalty.

The largest cost is usually the ITCMD (in São Paulo, 4% on the value of the assets). To this are added the costs (court costs or notary costs, in the extrajudicial route) and attorney's fees. In the extrajudicial route, there are also the deed fees. Overall, the cost varies according to the value of the estate and the route chosen — extrajudicial probate, when available, tends to be cheaper and faster than judicial probate.

The ITCMD (inheritance and gift tax) is the state tax on transfers by inheritance (causa mortis) and on gifts. In São Paulo, the rate is 4% (State Law 10.705/2000), applied to the value of the transferred assets. Although Constitutional Amendment 132/2023 provided for the future progressivity of the tax, in São Paulo this depends on a specific state law not yet enacted — for now, the rate remains fixed at 4%.

In inheritance, the ITCMD is owed by the heirs, in the course of probate; in a gift, as a rule by the donee (the recipient). In São Paulo, the tax must be paid so that probate or the gift can be completed and the assets transferred. Payment is a condition for the division of the estate and for the registration of the assets (such as real estate) in the beneficiaries' names. The calculation is based on the value of the assets.