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.
FAQ
Who can perform extrajudicial probate at a notary office?
Extrajudicial probate 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 can execute a public deed appointing an estate representative to authorize the sale of an estate asset before final distribution. Proceeds are dedicated to paying the Estate and Gift Tax (ITCMD) and notary fees.
How to include court debt claims (precatórios) and receivables in the distribution of an extrajudicial probate?
Court debt claims 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.
Base legal
- provimento_cnj 149 2023 — Provimento CNJ nº 149/2023
- 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
- 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
- lei_federal 8.935 1994 — Lei nº 8.935/1994