Extrajudicial Probate and Stable Union: Documentation and Rules
Out-of-court probate and stable union is the procedure conducted at a notary's office to partition the deceased's assets between the surviving partner and heirs by public deed.
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Note: This content describes Brazilian notary law.
Title
Out-of-Court Probate and Stable Union: Documentation and Qualification Rules
This article answers
- Can someone living in a stable union perform out-of-court probate at a notary's office?
- Is it possible to recognize a stable union directly in the out-of-court probate deed?
- What documents are required to perform out-of-court probate involving a stable union?
- How are assets divided between the surviving partner and the heirs?
- What happens if the heirs do not agree with the recognition of the stable union?
In summary
- Out-of-court probate and stable union (inventário extrajudicial e união estável) is the procedure conducted at a notary's office (tabelionato de notas) to partition the deceased's assets between the surviving partner (companheiro) and the heirs by public deed.
- The notary (tabelião de notas) can formalize the out-of-court probate and stable union when all heirs are legally capable and agree on the distribution of assets and the recognition of the union.
- If the couple already possessed a prior public deed of stable union or civil registration, the partner's qualification is immediate.
- In the absence of a prior deed, the heirs can recognize the stable union directly during the probate act, provided all expressly agree.
Can someone living in a stable union perform out-of-court probate at a notary's office?
A person who maintained a stable union (união estável) with the deceased can carry out the partition of assets by public deed at a notary's office (tabelionato de notas) (Lei nº 11.441/2007 [Law No. 11,441/2007], art. 1º). Legislation guarantees the surviving partner the same legal status granted to a married spouse for inheritance purposes.
To execute the deed of out-of-court probate and stable union, specific legal requirements must be met (Lei nº 13.105/2015 [Code of Civil Procedure - CPC], art. 610). All heirs must be of legal age or emancipated and fully capable. Complete agreement regarding the manner of asset distribution is also required.
The transmission of assets occurs immediately upon the opening of succession (Lei nº 10.406/2002 [Civil Code], art. 1º,784). The public deed formalizes this transmission and serves as a title for ownership transfer before the real estate registry official (oficial de registro de imóveis) (Lei nº 10.406/2002 [Civil Code], art. 1º,245) or before financial institutions and traffic departments.
The administrative process provides legal certainty and public faith (Lei nº 10.406/2002 [Civil Code], art. 215). To understand the general workflow of this procedure, consult the guide on out-of-court probate.
Is it possible to recognize a stable union directly in the out-of-court probate deed?
Regulations from the Conselho Nacional de Justiça (CNJ) (National Council of Justice) authorize the post-mortem recognition of a stable union in the same act as the probate (Provimento CNJ nº 149/2023 [CNJ Regulation No. 149/2023], Book II). The notary qualifies the partner and executes the public deed of probate and partition without requiring a prior judicial action.
This simultaneous recognition requires the presence and unanimous agreement of all legitimate heirs of the deceased. The heirs formally declare in the public deed that they recognize the existence of the family entity, the period of cohabitation, and the property regime applied.
If the couple signed a deed of stable union during life, the document serves as sufficient proof for notary qualification. The notary examines the title and includes the partner's marital share (meação) in the final partition.
The absence of a prior document does not prevent the act, as long as there are no disputes among family members. The joint declaration in the deed meets the validity requirements for legal transactions (Lei nº 10.406/2002 [Civil Code], art. 104) and preserves party autonomy.
FAQ
Can someone living in a stable union perform out-of-court probate at a notary's office?
Yes. A person who maintained a stable union with the deceased has the right to perform out-of-court probate at a notary's office, provided there is consensus among all heirs and no incapacitated parties involved.
Is it possible to recognize a stable union directly in the out-of-court probate deed?
Yes. The notary can formalize post-mortem recognition of the stable union in the same public probate deed, provided all heirs expressly recognize the relationship.
What documents are required to perform out-of-court probate involving a stable union?
A death certificate, personal documents of the deceased, partner, and heirs, a prior stable union certificate or documentary proof of cohabitation, property ownership certificates, and tax clearance certificates are required.
How are assets divided between the surviving partner and the heirs?
The surviving partner is entitled to a marital share (half of assets acquired for consideration during the union) and may compete with other heirs regarding private assets, according to Civil Code rules.
What happens if the heirs do not agree with the recognition of the stable union?
If there is disagreement among heirs regarding the existence or terms of the stable union, out-of-court probate cannot proceed at the notary's office, and the claim must be taken to court.
Base legal
- provimento_cnj 149 2023 — Provimento CNJ nº 149/2023
- codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
- lei_federal 11.441 2007 — Lei nº 11.441/2007
- codigo 13.105 2015 — Lei nº 13.105/2015 — Código de Processo Civil
- lei_federal 10.406 2002 — Lei nº 10.406/2002
- lei_federal 13.105 2015 — Código de Processo Civil - Art. 610
- codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil