Extrajudicial Probate: Guide to Asset Distribution, Court Debt Claims, and Estate Tax
Extrajudicial probate formalizes inheritance distribution at a notary office by public deed, allowing advance sale of assets to pay ITCMD estate tax and distribution of court debt claims.
Última atualização:
Por 5º Tabelionato de Notas do Recife — Ofício Notarial · 5º Tabelionato de Notas de Recife
Note: This content describes Brazilian notary law.
This article answers
- Who can perform extrajudicial probate at a notary office?
- How does selling assets to pay ITCMD work in an extrajudicial probate?
- How to include court debt claims (precatórios) and receivables in the distribution of an extrajudicial probate?
- What documents are required to initiate an extrajudicial probate?
- How much does extrajudicial probate cost and how long does it take?
Executive summary
- Extrajudicial probate (inventário extrajudicial) is the procedure executed at a notary office (tabelionato de notas) by public deed to formalize the transfer of assets and rights left by the deceased person to their heirs.
- The authorization for advance sale of assets allows selling a real estate property or vehicle belonging to the estate to pay the Estate and Gift Tax (Imposto sobre Transmissão Causa Mortis e Doação — ITCMD) and notary costs.
- Court debt claims (precatórios) and receivables from lawsuits form part of the estate assets and can be distributed directly by public deed.
- The presence of an attorney or public defender is a mandatory legal requirement for executing the public deed of extrajudicial probate.
Who can perform extrajudicial probate at a notary office?
You can choose extrajudicial probate (inventário extrajudicial) when there is full agreement among all heirs regarding the distribution of assets. Brazilian legislation, through the Código de Processo Civil, art. 610 (Civil Procedure Code), authorizes the notary pathway to expedite the estate transmission Lei nº 13.105/2015 — Código de Processo Civil, art. 610.
The general rule requires full civil capacity of all interested parties. However, regulations from the Conselho Nacional de Justiça (National Council of Justice — CNJ) and state Corregedorias-Gerais de Justiça (General Judicial Inspection Offices) allow extrajudicial probate even when there is a will or legally incapacitated heirs. In these specific situations, the distribution must respect the legal forced share (legítima) and obtain a favorable opinion from the Public Prosecutor's Office or judicial approval of testamentary clauses Provimento CNJ nº 149/2023, Livro II.
The transmission of the inheritance occurs at the moment of death by virtue of the principle of saisine, enshrined in the Código Civil (Civil Code) Lei nº 10.406/2002 — Código Civil, art. 1º.784. The public deed executed by the notary (tabelião de notas) regularizes title to assets vis-à-vis third parties and public agencies. To formalize the de facto union of the deceased person in the same deed, check out the article on extrajudicial probate and stable union.
How does selling assets to pay ITCMD work in an extrajudicial probate?
The lack of cash funds in the deceased's bank account often makes it difficult to pay the Estate and Gift Tax (Imposto sobre Transmissão Causa Mortis e Doação — ITCMD). To resolve this impasse, notary regulations allow the sale of assets to cover the payment of taxes and notary fees associated with extrajudicial probate.
The procedure works as follows:
- Appointment of estate representative: The notary (tabelião de notas) executes a declaratory public deed appointing an estate representative (inventariante) with authority to represent the estate (espólio).
- Request for sale: The estate representative requests notary authorization to alienate a specific asset belonging to the estate.
- Escrow account deposit: The proceeds obtained from selling the asset are deposited into an account linked to the estate for direct payment of the ITCMD tax assessment and notary costs.
- Execution of final deed: Once taxes are paid, the notary executes the final public deed of asset distribution in the extrajudicial probate.
This system eliminates the need to file a judicial proceeding solely to obtain a court authorization (alvará) for sale. If you need to understand in detail the limits of this advance asset sale, read the guide on how to sell estate property to pay ITCMD.
How to include court debt claims (precatórios) and receivables in the distribution of an extrajudicial probate?
Court debt claims (precatórios) and other credit rights arising from lawsuits won by the deceased person form part of the estate subject to distribution in the extrajudicial probate. You do not need to wait for the payment of the court debt claim to complete the execution of the deed.
The notary describes the origin of the credit, the lawsuit case number, the court branch handling the case, and the court certificate indicating the updated value or position in the chronological queue of the court debt claim. The deed assigns ideal fractions of this credit to each heir according to the agreed distribution plan.
After the signature and issuance of the certified copy (traslado) of the public deed of extrajudicial probate, the heirs' attorney submits the document to the execution court case. The presiding judge orders the substitution of the active party and the issuance of new payment requisitions directly in the name of each heir.
What documents are required to initiate an extrajudicial probate?
Assembling the correct document dossier ensures the efficiency of the legal qualification performed by the notary. Any inconsistency in marital status or asset description halts the process until proper rectification is made.
You must organize the required documentation into three main categories:
- Documents of the deceased: Death certificate, official identity document with CPF (tax ID), updated marriage or birth certificate, and negative certificate from the Colégio Notarial do Brasil proving the absence of a will.
- Documents of the heirs and surviving spouse: Official identity document with CPF, updated birth or marriage certificate, and proof of residence. If represented by an attorney-in-fact via public power of attorney, see the rules in the article on extrajudicial probate by power of attorney.
- Documents of the assets and tax clearance certificates: Updated property title certificate issued by the real estate registry office (oficial de registro de imóveis), municipal/rural property tax clearance proof (IPTU/ITR), bank statements, vehicle ownership certificates, and tax clearance certificates from Federal, State, and Municipal tax authorities.
The notary evaluates the standing of the parties and tax compliance before drafting the deed minute for the extrajudicial probate Lei nº 8.935/1994, art. 6º.
How much does extrajudicial probate cost and how long does it take?
The total cost of extrajudicial probate consists of three main components: notary fees (emolumentos), state tax (ITCMD), and legal fees.
The fees charged by the notary office (tabelionato de notas) and the real estate registry office (oficial de registro de imóveis) are established by specific state law and vary proportionally according to the total value of the distributed estate. The ITCMD tax is calculated by applying the state tax rate to the assessed market value of the transferred assets.
The average time to complete an extrajudicial probate at a notary office ranges from 15 to 45 business days. This timeframe depends directly on how quickly tax clearance certificates are issued and transmission tax assessments are paid to the State Treasury Department.
| Step | Responsible Party | Average Timeframe |
| :--- | :--- | :--- |
| Document and certificate collection | Heirs and Attorney | 5 to 15 days |
| Qualification and deed drafting at Notary Office | Notary (Tabelião de Notas) | 3 to 7 days |
| Valuation and ITCMD tax payment | State Treasury Department | 10 to 20 days |
| Signing and delivery of certified deed copy | Notary Office | 1 to 3 days |
| Registration on property title deed | Real Estate Registry Officer | 10 to 15 days |
Document checklist
To begin the notary qualification stage of your extrajudicial probate, organize the following list of documents:
- [ ] Death certificate of the deceased
- [ ] ID and CPF (tax ID) of the deceased and all heirs
- [ ] Updated marriage certificate of the deceased and heirs
- [ ] Negative certificate of will issued by CENSEC
- [ ] Updated property title certificate issued by the real estate registry officer
- [ ] Property tax clearance certificate (IPTU/ITR)
- [ ] Vehicle ownership document (CRLV) and bank statements
- [ ] Documentation proving court debt claims (precatórios) and receivables
- [ ] Tax clearance certificates in the name of the deceased (Federal, State, and Municipal)
- [ ] Bar Association (OAB) card of the assisting attorney
In practice
Case 1: Payment of ITCMD through the sale of an estate vehicle
A family lost their father, owner of a single real estate property, a vehicle, and a small bank account balance. The heirs lacked liquid funds to pay the ITCMD tax. The attorney requested the notary office to execute an advance deed appointing an estate representative (inventariante). With notary authorization, the estate representative sold the vehicle, deposited the amount into the estate bank account, and paid the state tax assessment. Subsequently, the notary concluded the public deed of extrajudicial probate, allowing direct registration of the real estate property under the heirs' names at the real estate registry office Lei nº 10.406/2002 — Código Civil, art. 1º.245.
Case 2: Distribution of a federal court debt claim without dispute among siblings
Two heirs intended to settle the estate left by their mother, consisting of a house and an unpaid federal alimentary court debt claim (precatório). They opted for extrajudicial probate at the notary office. The deed minute detailed the real estate balance and a 50% share of the court debt claim for each sibling. Upon execution and issuance of the certified public deed, the attorney petitioned the original Federal Court branch handling the execution. The judge affirmed the validity of the notary title and approved the assignment of credit rights so that future payment occurs into each heir's individual account.
Common mistakes
- Omitting the marital property regime of heirs: Presenting outdated marriage certificates prevents verification of spousal consent (outorga uxória/marital) when legally required. How to avoid: Request a recent duplicate (issued less than 90 days ago) from the Civil Registry of Natural Persons (Registro Civil das Pessoas Naturais).
- Failing to declare debts or pending receivables: Ignoring court debt claims or tax debts in the extrajudicial probate deed generates the need for subsequent supplemental distribution (sobrepartilha). How to avoid: Retrieve all civil court distribution certificates and lawsuit dockets prior to deed execution.
- Confusing the function of a notary deed with real estate registration: Believing that signing a public deed automatically transfers property ownership. How to avoid: Present the public deed of extrajudicial probate to the competent real estate registry office (oficial de registro de imóveis) to record the transfer on the title record (matrícula) Lei nº 10.406/2002 — Código Civil, art. 1º.245.
- Signing the draft without attorney review: Forgoing legal counsel review when checking inheritance shares. How to avoid: Ensure your attorney or public defender reviews the text and signs the notary act alongside all parties.
Legal basis
- Lei nº 13.105/2015 — Código de Processo Civil, art. 610 Lei nº 13.105/2015 (Código de Processo Civil — Civil Procedure Code), art. 610 — Planalto: Regulates probate and asset distribution by public deed.
- Lei nº 11.441/2007, art. 1º Lei nº 11.441/2007, art. 1º — Planalto: Amends Civil Procedure Code provisions to permit out-of-court proceedings in probate matters.
- Lei nº 10.406/2002 — Código Civil, art. 1º.784 Lei nº 10.406/2002 (Código Civil — Civil Code), art. 1º.784 — Planalto: Establishes that the inheritance transfers immediately to legal and testamentary heirs upon death.
- Lei nº 10.406/2002 — Código Civil, art. 215 Lei nº 10.406/2002 (Código Civil — Civil Code), art. 215 — Planalto: Defines a public deed executed by a notary as an instrument possessing public faith.
- Lei nº 10.406/2002 — Código Civil, art. 1º.245 Lei nº 10.406/2002 (Código Civil — Civil Code), art. 1º.245 — Planalto: Establishes that inter vivos transfer of real estate ownership takes effect upon recording of title at the Real Estate Registry.
- Lei nº 8.935/1994, art. 1º Lei nº 8.935/1994, art. 1º — Planalto: Defines notary and registration services as technical and administrative organizations designed to guarantee publicity, authenticity, security, and efficacy of legal acts.
- Provimento CNJ nº 149/2023, Livro II Provimento CNJ nº 149/2023, Livro II — CNJ: Consolidation of normative acts from the National Judicial Inspection Office (Corregedoria Nacional de Justiça) governing notary and registration services.
Frequently asked questions
Who can perform extrajudicial probate at a notary office?
Extrajudicial probate (inventário extrajudicial) at a notary office requires that all heirs possess full legal capacity and agree on the division of assets. The law permits notary execution even with legally incapacitated heirs or a will, provided legal safeguards are observed and prior judicial approval or Public Prosecutor's concurrence is obtained according to state regulations.
How does selling assets to pay ITCMD work in an extrajudicial probate?
The notary (tabelião de notas) can execute a public deed appointing an estate representative (inventariante) to authorize the sale of an estate asset before final distribution. Proceeds are dedicated to paying the Estate and Gift Tax (Imposto sobre Transmissão Causa Mortis e Doação — ITCMD) and notary fees.
How to include court debt claims (precatórios) and receivables in the distribution of an extrajudicial probate?
Court debt claims (precatórios) and judicial receivables are included in the extrajudicial probate deed as credit rights. The notary qualifies the enforceable title and formalizes the percentage assigned to each heir for subsequent submission to the court of origin.
What documents are required to initiate an extrajudicial probate?
You must present identity documents, updated birth or marriage certificates of the heirs and deceased, death certificate, negative will certificate, proof of asset ownership, and tax clearance certificates.
How much does extrajudicial probate cost and how long does it take?
The amount charged depends on the official state table of notary fees applied to the total value of the estate. The extrajudicial probate procedure typically takes between 15 and 45 business days once documentation is complete.
Editorial footer
Editorial team: Legal Writing Department of the 5th Notary Office of Recife (5º Tabelionato de Notas do Recife)
Date of last legal review: August 25, 2026
Version: 1.0
Territorial scope: Federal rule, governed by Lei nº 11.441/2007 and the Civil Procedure Code (Código de Processo Civil), with regulatory nuances in each state's Judicial Inspection Office (Corregedoria) standards.
Informational and educational content regarding extrajudicial probate; does not substitute formal legal counsel for specific cases.