Assignment of Hereditary Rights: Rules & Usufruct
The assignment of hereditary rights requires a public deed at a notary office and permits establishing usufruct and restrictive clauses when executed gratuitously.
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Context Note: This content describes Brazilian notary law (Direito Notarial Brasileiro).
This article answers
- What is an assignment of hereditary rights and how does it work at a notary office?
- Does an assignment of hereditary rights require a public deed at a notary office?
- Is it possible to reserve usufruct in an assignment of hereditary rights?
- Which restrictive clauses can be inserted in a gratuitous assignment of inheritance?
- What is the difference between an assignment of inheritance and a donation of assets?
Summary
- The assignment of hereditary rights (cessão de direitos hereditários) is the notarial act by which an heir transfers their share of an inheritance before probate (inventário) is completed.
- The transfer can be onerous (onerosa — paid) or gratuitous (gratuita — without consideration), and must be executed by public deed (escritura pública) at a notary office (tabelionato de notas).
- It is legally permissible to reserve usufruct (usufruto — right of use and fruits) or impose restrictive clauses of inalienability (inalienabilidade), non-community (incomunicabilidade), and unseizability (impenhorabilidade) when the transfer is gratuitous.
- The assignment covers an undivided fraction of the deceased person's estate, rather than a specific individualized asset, unless authorized by court order or agreed upon by all heirs during partition.
What is an assignment of hereditary rights and how does it work at a notary office?
An assignment of hereditary rights (cessão de direitos hereditários) is the voluntary transfer of an heir's share of an estate to another heir or to a third party. Upon the death of the asset owner, succession opens (Código Civil — Brazilian Civil Code, art. 1º.784 Lei nº 10.406/2002 — Código Civil, art. 1º.784). The inheritance is immediately transmitted as an undivided whole, in which each successor holds a fractional share of the estate.
You complete the transfer by appearing at the notary office (tabelionato de notas) to sign the public deed (escritura pública). The act takes place during the probate process (inventário), before partition (partilha) is concluded and the properties are registered at the competent Real Estate Registry (Registro de Imóveis).
The assignee (cessionário — who receives the hereditary share) steps into the legal position of the assigning heir (cedente) in the probate process. The notary fees (emolumentos) follow the official fee schedule established within the respective State.
> Normative note: The general rules of legal transactions and formal requirements for transferring inherited estate assets are grounded in the provisions of the Civil Code (Código Civil) and administrative regulations issued by local Judicial Internal Affairs Offices (Corregedorias de Justiça).
Does an assignment of hereditary rights require a public deed at a notary office?
Yes, you are strictly required to formalize the act through a public deed (escritura pública) drawn up at a notary office (tabelionato de notas) (Código Civil — Brazilian Civil Code, art. 108 Lei nº 10.406/2002 — Código Civil, art. 108). Brazilian legislation equates the right to an opened succession to real property for the legal effects of obligation validity.
Any agreement made by private instrument (instrumento particular) to assign shares of an inheritance is null and void as a matter of law and produces no legal effects before third parties or within the probate proceedings (Código Civil, art. 166 Lei nº 10.406/2002 — Código Civil, art. 166). The public deed ensures authenticity, legal certainty, and full proof of the facts declared before the parties (Código Civil, art. 215 Lei nº 10.406/2002 — Código Civil, art. 215).
Procedure steps at the notary office
- Submission of documents: The heir provides personal documents, the deceased's death certificate, and proof of heir status to the notary office.
- Draft analysis: The notary public (tabelião de notas) checks the legal capacity of the declarants and drafts the public act incorporating their expressed intent.
- Tax payment: Applicable taxes are paid (ITBI for onerous assignments or ITCMD for gratuitous assignments).
- Execution of the public deed: The act is signed by the parties and the notary public, becoming an official public document.
- Filing in probate: The buyer or beneficiary submits the public deed into the judicial probate or extrajudicial probate to receive the assets upon partition.
| Type of Transfer | Applicable Tax | Formal Requirement | Application of Restrictive Clauses |
| :--- | :--- | :--- | :--- |
| Onerous Assignment | ITBI (Municipal) | Public Deed | Does not permit inalienability clauses |
| Gratuitous Assignment | ITCMD (State) | Public Deed | Permits inalienability, non-community, and usufruct |
FAQ
What is an assignment of hereditary rights and how does it work at a notary office?
An assignment of hereditary rights is a legal transaction by which an heir transfers their share of an inherited estate to another person. The act is formalized via a public deed drawn up at a notary office (tabelionato de notas) prior to the completion of probate partition.
Does an assignment of hereditary rights require a public deed at a notary office?
Yes. Transferring hereditary rights strictly requires a public deed to take legal effect, as the right to an opened succession is legally classified as real property for formal legal purposes.
Is it possible to reserve usufruct in an assignment of hereditary rights?
Yes. An heir can assign bare ownership (ownership without direct possession) of their inherited share while reserving usufruct (the right to use and enjoy fruits) for themselves or third parties during partition.
Which restrictive clauses can be inserted in a gratuitous assignment of inheritance?
In a gratuitous assignment, the assignor can attach restrictive clauses of inalienability (prohibition on selling), non-community (exclusion from a spouse's marital assets), and unseizability (protection against debt attachments).
What is the difference between an assignment of inheritance and a donation of assets?
An assignment transfers an undivided fractional share of the general estate before probate completion. A donation applies to a specific, individualized asset already owned and registered by a living individual.
Base legal
- codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
- lei_federal 8.935 1994 — Lei nº 8.935/1994
- lei_federal 11.441 2007 — Lei nº 11.441/2007
- codigo 13.105 2015 — Lei nº 13.105/2015 — Código de Processo Civil
- codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
- codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
- lei_federal 10.406 2002 — Lei nº 10.406/2002
- codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
- lei_federal 8.935 1994 — Lei nº 8.935/1994