Extrajudicial Probate Guide: Documents and Deadlines
Extrajudicial probate allows fast and amicable partition of inheritances through a public deed executed at a notary office, carrying the same legal force as a court ruling.
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Context Note: This content describes Brazilian notary law.
What is the deadline to initiate extrajudicial probate and avoid ITCMD tax penalties?
The Código de Processo Civil (Brazilian Code of Civil Procedure) establishes a deadline of 60 days from the opening of the succession to initiate the probate proceedings. Succession opens at the exact moment of death (Lei nº 10.406/2002 — Código Civil [Brazilian Civil Code], art. 1º,784 Lei nº 10.406/2002 — Código Civil, art. 1º.784).
Once the 60-day period has passed, tax penalties established by the legislation of each state apply to the ITCMD (Imposto sobre Transmissão Causa Mortis e Doação — State Inheritance and Donation Tax). The delay does not prevent conducting the extrajudicial probate, but it increases the overall cost of the procedure.
To meet the tax requirement within the deadline, heirs can file the tax declaration with the state tax authority. The administrative tax assessment formalizes the commencement of the proceedings.
Payment of the ITCMD must be made prior to signing the public deed of estate partition. The notary public (tabelião de notas) verifies the tax payment as a legal requirement for executing the deed (Lei nº 8.935/1994, art. 6º Lei nº 8.935/1994, art. 6º).
How much does extrajudicial probate cost and how is its value calculated?
The costs of extrajudicial probate are divided into three main components: notary fees (emolumentos notariais), state inheritance tax (ITCMD), and real estate registration fees.
The fees charged by the notary office (tabelionato de notas) are fixed by a state statutory fee schedule. The calculation is based on the gross assessed value of all transferred estate assets.
The ITCMD varies according to the applicable tax rate in each state applied to the valuation of the assets. The amount due is calculated directly through the state Treasury Department system.
After execution at the notary office, transferring real property requires registering the public deed at the real estate registry office (registro de imóveis) of the corresponding jurisdiction (Lei nº 10.406/2002, art. 1º.245 Lei nº 10.406/2002 — Código Civil, art. 1º.245). This registration act has its own fees set by state law.
Check the current rates in the official fee schedule of the State of Pernambuco on the Judiciary Portal at TJPE.
FAQ
Who can perform extrajudicial probate at a notary public office?
Heirs who are legally competent and in agreement on the partition of the estate can perform the procedure. The notary route requires full consensus and legal representation by an attorney or public defender.
What documents are required for extrajudicial probate?
Identification documents of heirs and the deceased, death certificate, marriage or birth certificates, property ownership deeds, and municipal, state, and federal tax clearance certificates are required.
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
- codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
- lei_federal 10.406 2002 — Lei nº 10.406/2002
- lei_federal 13.105 2015 — Código de Processo Civil - Art. 610
- lei_federal 8.935 1994 — Lei nº 8.935/1994