Out-of-Court Probate: Guide and Documents

Note: This content describes Brazilian notarial law and out-of-court estate settlement procedures in Brazil.

Title

Procedures, Documentation, and Asset Division in Out-of-Court Probate

Procedures, Documentation, and Asset Division in Out-of-Court Probate

This article answers

• What is out-of-court probate and when can you perform it at a notary office?
• What documents are required to initiate an out-of-court probate?
• Is it possible to appoint an estate administrator (inventariante) by public power of attorney in out-of-court probate?
• How does the assignment of inheritance rights work within the same out-of-court probate deed?
• Is it possible to sell the sole real estate property to pay ITCMD tax in out-of-court probate?
• How long does an out-of-court probate take and how much does it cost?

In summary

• Out-of-court probate (inventário extrajudicial) is the procedure performed at a notary public office (tabelionato de notas) to formalize the inventory of assets, settlement of obligations, and division of an estate of a deceased person without the need for a judicial lawsuit.
• You can carry out the procedure at the notary public office if all heirs agree on the division of assets, possess full civil capacity, and are assisted by an attorney or public defender.
• The public deed takes immediate effect and serves as a valid title to transfer real estate properties at the real estate registry office (registro de imóveis), vehicles at Detran, and funds deposited in the banking system.
• It is legally permissible to execute the assignment of inheritance rights in the same deed and to use estate assets to settle state taxes.

What is out-of-court probate and when can you perform it at a notary office?

When a person dies, succession opens and assets and obligations are immediately transmitted to the heirs Lei nº 10.406/2002 — Código Civil, art. 1º.784. Out-of-court probate represents the administrative path created by Lei nº 11.441/2007 (Law No. 11,441/2007) to formalize the transfer of this estate quickly and with legal certainty Lei nº 11.441/2007, art. 1º. You choose out-of-court probate to avoid years of processing in the Judiciary Branch.

You can perform the act directly at a notary public office if you meet four essential legal requirements Lei nº 13.105/2015 — Código de Processo Civil, art. 610:

• Total agreement among heirs: there can be no disagreement regarding the destination and division of the estate.
• Full civil capacity: all interested parties must be over 18 years old or emancipated, without any legal incapacity.
• Absence of a will: unless the will is lapsed, revoked, or there is express authorization from the competent probate court to process the estate extrajudicially.
• Mandatory legal representation: the presence of a retained attorney or public defender is required at all stages of drafting the deed.

The public deed drafted by the notary public constitutes full proof and holds equal value to a court judgment Lei nº 10.406/2002 — Código Civil, art. 215. With this document in hand, you do not need a judicial court order (formal de partilha) to transfer ownership at registry bodies.

What documents are required to initiate an out-of-court probate?

Assembling the correct documentation is the crucial step to ensure the safety of the heirs and the speed of execution. You need to organize the document file into three main categories: documents of the deceased, of the heirs, and of the assets.

You must request updated certificates in advance, generally issued within the last 90 days, to prove the marital status of the parties and the tax compliance of the assets. You can find detailed specifications for this documentation in our guide on documents for stable union and out-of-court probate.

Essential documents of the deceased include:

• Original death certificate;
• Official identity document and CPF (Individual Taxpayer Registry);
• Premarital agreement certificate or public deed of stable union, if any;
• Tax clearance certificates from Federal, State, and Municipal Tax Authorities;
• Certificate of Non-existence of a Will issued by CENSEC (National Central Notarial Registry).

Documents of the heirs and surviving spouse or partner (meeiro) include:

• Identity documents, CPF, and proof of residence;
• Updated birth certificate (for single individuals) or marriage certificate (for married, separated, or divorced individuals);
• Public power of attorney with specific powers to execute probate, if a party cannot attend in person.

Documents of estate assets include:

• Certificate of real estate registration (matrícula) with an updated search for encumbrances and real actions issued by the Real Estate Registry;
• Municipal property tax bill (IPTU) or tax assessment certificate for urban properties;
• Rural Real Estate Registration Certificate (CCIR) and CAR certificate for rural properties;
• Vehicle registration document (CRLV) and FIPE table valuation on the date of death;
• Official bank statements showing balances on the date of death.

Is it possible to appoint an estate administrator (inventariante) by public power of attorney in out-of-court probate?

Yes. You can appoint an estate administrator (inventariante) through a public deed of appointment of estate administrator at a notary public office even before drafting the final asset division deed. This appointment is supported by the Código de Processo Civil (Civil Procedure Code) and regulations of the Conselho Nacional de Justiça (CNJ - National Council of Justice) Provimento CNJ nº 149/2023, Livro II.

The prior appointment serves to solve a major bureaucratic obstacle. When a person dies, bank accounts and access to tax information of the deceased are frozen. By executing a public deed of appointment, you grant estate representation powers to a family member.

With this notary instrument, the appointed estate administrator acquires the following procedural rights and duties:

• Representing the estate before federal, state, and municipal public agencies;
• Requesting bank account statements and transaction histories of the deceased as of the date of death;
• Filing the Declaration of State Inheritance and Donation Tax (ITCMD) with the State Department of Revenue (Sefaz);
• Submitting applications for tax exemptions or installment payment plans owed by the estate;
• Signing a commitment as a legal depositary regarding the custody of the deceased's assets.

If an heir cannot attend on the day the probate is finalized, you can use execution via public power of attorney, as detailed in the study on out-of-court probate by public power of attorney.

How does the assignment of inheritance rights work within the same out-of-court probate deed?

You do not need to wait for the completion of the asset division process to transfer your share of the inheritance. The Código Civil (Civil Code) allows the assignment of inheritance rights (cessão de direitos hereditários), which must mandatorily be formalized by public deed Lei nº 10.406/2002 — Código Civil, art. 108.

You can complete this transaction within the body of the out-of-court probate deed itself. There are two distinct types of assignment of rights in a notary setting:

• **Onerous Assignment (Cessão Onerosa):** occurs when you sell your inheritance rights to a co-heir or a third party. The buyer assumes the right to receive the corresponding share upon final liquidation of the estate. Taxes applicable to this transaction include ITCMD due to the death and municipal Real Estate Transfer Tax (ITBI) due to the purchase and sale.
• **Gratuitous Assignment (Cessão Gratuita/Doação):** occurs when you waive your share in favor of a specific person or donate your inheritance share without financial consideration. This transaction incurs dual state ITCMD tax: first for the transfer upon death from the deceased to the heirs, and second for the inter vivos gift of the share.

The notary public records the intent of the parties, calculates the applicable state and municipal tax levies, and formalizes a single title. If the distribution involves advance transfers with encumbrances, you can also check the procedure for donation of real estate with reservation of usufruct.

Is it possible to sell the sole real estate property to pay ITCMD tax in out-of-court probate?

Yes. The lack of cash to pay the Inheritance and Donation Tax (ITCMD) and notary costs was previously a barrier that prevented the completion of out-of-court probate for families whose assets were concentrated in real estate properties.

Provisions issued by the National Inspectorate of Justice unified notary interpretations across the country Provimento CNJ nº 149/2023, Livro II. Today, you have two viable options at the notary public office:

• Issuance of a notary authorization for prior sale: the notary public drafts an initial probate deed appointing an estate administrator, containing a clause authorizing the sale of a specific estate asset. Funds obtained from the transaction are deposited directly into a restricted account or allocated to the immediate payment of the state ITCMD tax assessment (DAE) and notary fees.
• Joint execution of onerous assignment or purchase and sale: the third-party buyer enters the probate deed, pays the amount directly to clear the taxes owed by the heirs, and receives title to the property upon execution of the deed.

This measure streamlines estate liquidation, prevents state tax penalties, and enables regular tax payment without requiring heirs to incur personal debts.

How long does an out-of-court probate take and how much does it cost?

The processing time for an out-of-court probate is significantly shorter than judicial probate. While court proceedings in a Probate Court can take years, the act performed at a notary public office typically takes between 15 and 45 business days.

This timeframe depends directly on the prompt delivery of documents by the heirs and the time required by the State Department of Revenue to issue the ITCMD tax assessment and clearance certificate.

The financial costs of out-of-court probate include the following mandatory expenditures:

• **Notary fees (emolumentos):** the amount paid to the notary public office is fixed by state law and varies according to the total gross value of the deceased's estate.
• **State taxes (ITCMD):** the inheritance tax rate is regulated by the Legislative Assembly of the state where real properties are located (or the deceased's domicile for personal property), ranging on average from 1% to 8% of asset value.
• Registration at the Real Estate Registry: after the deed is executed, you will pay recording fees (taxas de averbação e registro) at each real estate registry office where properties are located Lei nº 10.406/2002 — Código Civil, art. 1º.245.
• Attorney fees: agreed upon between you and the legal professional retained to review the draft deed.

If an asset is omitted at the time of initial probate, the completed procedure remains valid. In such scenarios, you can arrange for an out-of-court post-probate asset division (sobrepartilha).

Document checklist

You can use this list to verify the items required by the notary public office:

• [ ] Original death certificate of the deceased
• [ ] Official photo ID and CPF for all parties to the deed
• [ ] Marriage certificate of the deceased and married heirs (issued within the last 90 days)
• [ ] Birth certificate of single heirs (issued within the last 90 days)
• [ ] Certificate from the Central Will Registry (CENSEC)
• [ ] Tax clearance certificates from federal, state, and municipal tax authorities
• [ ] Updated real estate registration certificate showing encumbrances for urban and rural properties
• [ ] Current year municipal property tax bill (IPTU) or property assessment certificate
• [ ] Official bank statements showing account and investment balances on the date of death
• [ ] Signed draft deed and Brazilian Bar Association (OAB) card of assisting attorney

FAQ

What is out-of-court probate and when can you perform it at a notary office?

Out-of-court probate is a procedure executed by public deed at a notary public office to formalize the transfer of assets of a deceased person. You can choose this path when all heirs are capable, agree on the division of assets, and are assisted by an attorney or public defender.

What documents are required to initiate an out-of-court probate?

You must submit the death certificate of the deceased, identity documents and CPF of the parties, updated marriage and birth certificates, real property ownership and encumbrance certificates, tax clearance certificates, and a CENSEC certificate proving the absence of a will.

Is it possible to appoint an estate administrator (inventariante) by public power of attorney in out-of-court probate?

Yes. You can execute a public deed appointing an estate administrator even prior to drafting the final probate deed. This designation allows the estate administrator to represent the estate before banks, public agencies, and utility companies to access balances and sign tax filings.

How does the assignment of inheritance rights work within the same out-of-court probate deed?

You can assign your share of the inheritance to another heir or a third party directly within the public deed of probate. The assignment may be onerous (involving a purchase and sale of rights) or gratuitous (involving a donation of rights), incurring applicable ITBI or ITCMD taxes.

Is it possible to sell the sole real estate property to pay ITCMD tax in out-of-court probate?

Yes. Regulations from the National Council of Justice and state provisions permit prior requests to the notary public or the issuance of authorization to sell an estate asset to cover ITCMD taxes, notary fees, and debts of the deceased.

How long does an out-of-court probate take and how much does it cost?

The procedure takes on average 15 to 45 business days when documentation is complete. Costs include notary fees set by state schedules, state or municipal taxes (ITCMD and ITBI), and attorney fees.

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
• 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
• codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
• lei_federal 8.935 1994 — Lei nº 8.935/1994

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