Documents for Extrajudicial Probate and Assignment

This article answers

• What are the required documents for extrajudicial probate and assignment of hereditary rights?
• Who can assign hereditary rights during an out-of-court probate at a notary office?
• What certificates are required to prove tax clearance and the absence of debts?
• How does an onerous or gratuitous assignment of hereditary rights with reservation of usufruct work?
• What is the correct time to submit documentation and draw up public deeds at the notary office?

In summary

• The assignment of hereditary rights transfers an inheritance share through a public deed executed at a notary office (tabelionato de notas).
• Extrajudicial probate requires consensus among capable heirs, the absence of a will (unless judicially authorized), and assistance from an attorney or public defender.
• The list of Required Documents for Extrajudicial Probate and Assignment of Hereditary Rights includes personal qualification of the parties, death certificate, property certificates, and tax clearance certificates.
• Prior notary qualification validates document regularity before formalizing the acts constituting the partition.

What are the required documents for extrajudicial probate and assignment of hereditary rights?

The formalization of partition and the transfer of hereditary shares at a notary office (tabelionato de notas) require a strict set of documents (Lei nº 13.105/2015 [Brazilian Code of Civil Procedure], art. 610). The list of Required Documents for Extrajudicial Probate and Assignment of Hereditary Rights consists of personal documentation for the deceased, heirs, surviving spouse (meeiro), and assignee (cessionário), as well as asset certificates and tax clearance.

For the deceased (author of the inheritance), you must present an official identity document with CPF (Individual Taxpayer Registry), the original death certificate, and an updated civil status certificate (Lei nº 11.441/2007 [Extrajudicial Probate Law], art. 1º). A certificate confirming the absence of a will, issued by the competent notary college, is also required.

For heirs, surviving spouse, and assignees, the required documents include RG (Identity Card), CPF, proof of residence, and an updated birth or marriage certificate. If the assignment is executed by an attorney-in-fact, the public power of attorney must contain specific and express powers for the alienation or assignment of a hereditary share.

Regarding real estate, an updated property search certificate showing encumbrances and pending actions (certidão de matrícula com ônus e ações) must be requested from the competent Real Estate Registry (Registro de Imóveis), accompanied by the municipal property tax (IPTU) bill or assessed value certificate (certidão de valor venal). For movable assets or corporate stakes, proof of ownership is required, such as vehicle registration certificates or corporate articles of organization with the balance sheet.

You can consult our article Extrajudicial Probate: Guide, Documents, and Deadlines to understand how documentation is filed in out-of-court proceedings.

Who can assign hereditary rights during an out-of-court probate at a notary office?

Any legitimate heir or beneficiary (legatário) who is fully capable may transfer their ideal share of the inheritance to another heir or to third parties (Código Civil [Brazilian Civil Code], art. 104). The assignment requires the execution of a public deed at a notary office under penalty of nullity of the act (Código Civil, art. 108).

Normative note: The indivisibility of the inheritance stems from specific federal legislation not listed in this excerpt. For this reason, assignment does not transfer ownership of a specific singular asset, but rather an undivided percentage fraction of the entire estate, unless all co-heirs agree during partition.

If the assigning heir is married, spousal consent (outorga conjugal) is mandatory, except under the absolute separation of property regime. The lack of spousal consent renders the assignment of rights subject to annulment. The assignee steps into the legal position of the assigning heir in the probate proceeding, assuming their rights and obligations in proportion to the acquired share.

When gathering the Required Documents for Extrajudicial Probate and Assignment of Hereditary Rights, the notary verifies the civil capacity of the granting parties and the legal necessity of spousal consent to execute the act with full legal certainty (Código Civil, art. 215).

What certificates are required to prove tax clearance and the absence of debts?

Tax clearance is a prerequisite for the notary to execute the public deed of extrajudicial probate and receive the assignment of rights. Tax certificates prove that the deceased and the assets composing the estate have no outstanding tax liabilities with public treasuries.

The list of certificates includes:

• Federal Tax Clearance Certificate (Certidão Negativa de Débitos Relativos a Créditos Tributários Federais e à Dívida Ativa da União), issued by the Federal Revenue Service (Secretaria da Receita Federal).
• State Tax Clearance Certificate for the deceased's domicile and the location of real estate properties.
• Municipal Tax Clearance Certificate (IPTU and municipal fees) applicable to the probated real estate.
• Certificate of Clearance of the State Inheritance and Gift Tax (ITCMD — Imposto sobre Transmissão Causa Mortis e Doação) or Real Estate Transfer Tax (ITBI — Imposto sobre Transmissão de Bens Imóveis, in cases of onerous assignment of hereditary rights).

Verifying the validity period of certificates is essential. Legislation requires recent issuance of documents to eliminate risks of attachments or subsequent tax debts. To learn more about certificate validity timeframes, access the article Why Do Notary Offices Require Certificates Updated Within 90 Days?.

Furthermore, the National Justice Council (CNJ — Conselho Nacional de Justiça) regulates notarial supervision and verification of state and municipal taxes and certificates (Provimento CNJ nº 149/2023 [CNJ Regulation No. 149/2023], Book II). Proper submission of the Required Documents for Extrajudicial Probate and Assignment of Hereditary Rights prevents notarial requisitions and delays in completing partition.

How does an onerous or gratuitous assignment of hereditary rights with reservation of usufruct work?

The assignment of hereditary rights may be executed on an onerous or gratuitous basis. In an onerous assignment, the transaction resembles a sale, triggering the Real Estate Transfer Tax (ITBI) on the assigned share. In a gratuitous assignment, the act is equivalent to a gift, triggering the ITCMD according to state tax rates.

The assignor is permitted to establish or reserve usufruct over the assigned ideal share or over specific assets at the time of partition. Reserving usufruct guarantees the assignor the right to use and enjoy the income from the asset during their lifetime, while granting bare ownership (nu-propriedade) of the hereditary share to the assignee.

To structure this transaction, read the details in Assignment of Hereditary Rights: Rules and Usufruct. The notary will explicitly state in the public deed the conditions of assignment, taxes paid, and usufruct clauses agreed upon by the parties (Lei nº 8.935/1994 [Notary and Registration Law], art. 6º).

Upon presentation of the Required Documents for Extrajudicial Probate and Assignment of Hereditary Rights, the notary office drafts the instrument providing for the transfer of the share and the creation of in rem guarantees, strictly respecting the autonomy of will of the interested parties.

What is the correct time to submit documentation and draw up public deeds at the notary office?

You must submit all documentation at the beginning of service at the notary office for notary qualification review. The notary and deputy notaries examine compliance with legal requirements, check document authenticity, and validate state and municipal tax calculations.

The assignment of hereditary rights may be formalized in an independent public deed drawn up prior to probate. It can also be executed directly within the public deed of probate and partition through a dedicated clause for assignment of rights.

The opening of succession immediately transfers the estate to legitimate heirs (Código Civil, art. 1º,784). However, the effective transfer of real estate ownership to heirs or assignees is only perfected upon registration of the public deed of probate with the competent Real Estate Registry (Código Civil, art. 1º,245).

Therefore, complete submission of the Required Documents for Extrajudicial Probate and Assignment of Hereditary Rights at the opening stage of notary proceedings ensures speed and prevents potential requisitions (notas de exigência) during property registration.

Document checklist

Documents of the deceased (author of the inheritance)

• [ ] Original death certificate;
• [ ] Official photo identification document with CPF;
• [ ] Marriage or birth certificate issued within the last 90 days;
• [ ] Negative search certificate for wills issued by CENSEC / CNJ.

Documents of heirs, surviving spouse, and assignees

• [ ] RG and CPF of heirs, spouses, and assignees;
• [ ] Birth or marriage certificate with updated marginal annotations (issued within 90 days);
• [ ] Updated proof of residence;
• [ ] Registered prenuptial agreement (if applicable);
• [ ] Public power of attorney with specific powers for assignment or probate (when represented).

Documents for real estate and movable assets

• [ ] Updated property search certificate showing encumbrances and pending actions from the Real Estate Registry;
• [ ] Certificate of assessed value or current year IPTU/ITR tax bill;
• [ ] Vehicle registration document (CRLV) or proof of bank balances and corporate holdings.

Tax clearance certificates

• [ ] Federal Tax Clearance Certificate and Federal Debt Certificate;
• [ ] State Tax Clearance Certificate;
• [ ] Municipal Tax Clearance Certificate for real estate properties and the deceased's domicile;
• [ ] DAE/DAM proof of tax payment for ITCMD and/or ITBI with respective clearance or homologation.

In practice

Case 1: Assignment of rights between co-heirs with translative renunciation

Three siblings inherited a single urban property. One brother lived in another city and decided to assign his share to the other two through an onerous assignment. He presented the Required Documents for Extrajudicial Probate and Assignment of Hereditary Rights at the notary office. The notary executed the public deed of assignment simultaneously with the probate deed, collecting ITBI on the assigned share and ITCMD on the partition. Property title was registered at the Real Estate Registry directly in the names of the two assignee siblings.

Case 2: Probate with gratuitous assignment and reservation of lifetime usufruct

A surviving widow and her only son decided to reorganize family assets after the father's death. The son gratuitously assigned his bare ownership of half the probated assets to his mother, reserving for himself the right to usufruct over part of the property income. Complete property documentation and tax certificates were filed with the notary office. The notary verified ITCMD payment for the gift of the share and executed the public deed of probate with assignment of rights and reservation of usufruct, which was subsequently recorded at the Real Estate Registry.

Frequent errors

• Presenting a private instrument for the assignment of hereditary rights: Assignment of hereditary rights made by private contract is null and void under the law. Statutory provisions strictly mandate execution by public deed at a notary office (Código Civil, art. 108).
• Assigning a specific asset without consent of all co-heirs: An heir cannot assign an individualized asset from the estate prior to partition, as the inheritance remains an undivided whole. Assignment must apply to an ideal quota or fraction.
• Absence of spousal consent from the assignor: Except under the absolute separation of property regime, an assignment executed without spousal consent is voidable and will not pass notary qualification.
• Expired tax or civil status certificates: Using certificates issued more than 90 days prior prevents execution of the public probate deed due to non-compliance with state Codes of Norms.
• Failing to pay due taxes within the legal deadline: Onerous assignment triggers ITBI, while gratuitous assignment triggers ITCMD. Failure to provide proof of tax payment prevents completion of extrajudicial partition.

Legal basis

• Lei nº 10.406/2002 (Brazilian Civil Code), art. 108 — Mandates public deeds as essential to the validity of legal transactions involving real estate or in rem rights exceeding 30 times the highest national minimum wage. Planalto
• Lei nº 10.406/2002 (Brazilian Civil Code), art. 215 — Establishes that public deeds drawn up in notary offices are instruments vested with public faith and constitute full proof. Planalto
• Lei nº 10.406/2002 (Brazilian Civil Code), art. 1º.245 — Establishes that inter vivos transfer of real estate ownership occurs upon title registration at the Real Estate Registry. Planalto
• Lei nº 10.406/2002 (Brazilian Civil Code), art. 1º.784 — Establishes the principle of saisine, whereby the inheritance transfers to heirs immediately upon opening of succession. Planalto
• Lei nº 11.441/2007 (Extrajudicial Probate Law), art. 1º — Authorizes out-of-court consensual probate, partition, separation, and divorce before a notary office. Planalto
• Lei nº 13.105/2015 (Brazilian Code of Civil Procedure), art. 610 — Provides for probate and partition by public deed provided all heirs are of full capacity and in agreement. Planalto
• Lei nº 8.935/1994 (Notary and Registration Law), art. 1º — Regulates notary and registration services to ensure publicity, authenticity, security, and efficacy. Planalto
• Lei nº 8.935/1994 (Notary and Registration Law), art. 6º — Sets forth the exclusive duties of notaries in drafting public deeds and notarial acts. Planalto
• Provimento CNJ nº 149/2023 (CNJ Regulation No. 149/2023) — Consolidates the National Code of Norms of the National Justice Corregidor Office for notary and registry services. Atos CNJ

Frequently asked questions

What are the required documents for extrajudicial probate and assignment of hereditary rights?

Identification documents of the parties, death certificate of the deceased, updated civil status certificates, tax clearance certificates, and proof of ownership of movable and immovable assets are required. The notary office reviews all documentation to ensure legal compliance of deeds.

Who can assign hereditary rights during an out-of-court probate at a notary office?

Any legitimate heir or beneficiary of full capacity may assign their hereditary share by public deed. If the assignor is married, spousal consent is required depending on the marital property regime adopted.

What certificates are required to prove tax clearance and the absence of debts?

The federal tax clearance certificate issued by the Federal Revenue Service, state and municipal tax clearance certificates for the deceased's domicile and real properties, and a certificate of absence of a will are required.

How does an onerous or gratuitous assignment of hereditary rights with reservation of usufruct work?

Assignment may occur on an onerous basis (similar to a sale) or a gratuitous basis (similar to a gift). Usufruct can be created or reserved over the assigned hereditary share, ensuring enjoyment of the asset until full ownership consolidates.

What is the correct time to submit documentation and draw up public deeds at the notary office?

Documentation is submitted to the notary office at the start of notary qualification. The public deed of assignment of rights may be executed prior to or simultaneously with the public deed of probate and asset partition.

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5º Tabelionato de Notas do Recife (5th Notary Office of Recife)

Notarial Writing and Legal Qualification Team

Date of last legal review: September 18, 2026

Version 1.0 — PEAN/2026

Content reviewed within the last 12 months based on Lei nº 11.441/2007 in force on the date. Informational content; does not replace legal counsel for specific cases. Contact the local notary office in your region to execute the appropriate notarial act.

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