Subsequent Partition and Successive Probates at Notary Office

Context Note: This content describes Brazilian notarial and registry law rules.

Subsequent Partition and Successive Probates in Extrajudicial Public Deed

This article answers

• What are subsequent partition and successive probates in a public deed?
• How to qualify heirs in a subsequent partition if the surviving spouse died without a prior probate?
• What are the rules of succession for the surviving spouse and heirs in successive probates?
• What documents are required for subsequent partition and successive probates at a notary office?
• How does the ITCMD tax payment and notary costs work in successive probates?

In summary

• Subsequent partition and successive probates in a public deed resolve estate issues arising from one or more deaths without requiring judicial proceedings.
• Subsequent partition (sobrepartilha) is used to divide assets that were omitted, reserved, or discovered after the initial probate.
• Successive probates occur when the death of the surviving spouse or an heir happens before the conclusion of the first probate, allowing joint settlement of the estates.
• The procedure requires the agreement of all legally capable heirs and assistance by an attorney or public defender, complying with tax payments for each taxable event.

What are subsequent partition and successive probates in a public deed?

Subsequent partition and successive probates in a public deed represent notarial acts intended to regularize asset transmission when deaths occur in sequence or when assets remained outside a concluded probate Lei nº 11.441/2007, art. 1º.

Subsequent partition occurs when the family discovers new assets after the execution of the first deed. It also serves for litigated assets or assets located in distant places that were reserved in the original division. The procedure follows the same steps as extrajudicial probate and maintains the same legal validity.

Successive probates occur when the surviving spouse or one of the heirs dies without the probate of the first deceased being performed or concluded. The law authorizes the settlement of two or more successions in a single public deed or connected acts. This measure saves time and simplifies registration at the real estate registry office.

You can use the extrajudicial route provided all interested parties are legally capable and agree on the division of assets. The assistance of an attorney is mandatory under Lei nº 11.441/2007 (Law No. 11,441/2007, art. 1º). The act is executed at the notary office of your choice.

How to qualify heirs in a subsequent partition if the surviving spouse died without a prior probate?

Qualifying the parties in subsequent partition and successive probates requires rigorous technical attention at the notary office. When the surviving spouse (cônjuge meeiro) dies without a prior probate, the notarial act must detail the chain of transfers to ensure registration continuity.

First, the notary identifies the first deceased person (autor da herança) and establishes their marital share (meação) and statutory share (legítima). The spouse dies subsequently, making their estate an interested party in the inheritance of the first deceased. The heirs of the surviving spouse attend the execution of the deed representing the opened succession of the second death.

The text of the public deed must explicitly clarify the following qualification details:

• The full qualification of the first deceased and second deceased persons;
• Clear indication of the date of both deaths to establish the order of succession opening (Código Civil [Civil Code], art. 1º,784);
• Qualification of all surviving heirs and any spouses;
• Qualification of the estate administrator (inventariante) appointed to represent both estates.

If there is a need to sell an estate asset to cover fees or taxes, the family may consider the option to sell estate property to pay ITCMD. This option must be expressly included in the draft of the procedure.

What are the rules of succession for the surviving spouse and heirs in successive probates?

Succession rules applicable to subsequent partition and successive probates strictly comply with the law in effect on the date of each death Lei nº 10.406/2002 — Código Civil, art. 1º.784. This principle is essential because inheritance rules for surviving spouses and partners vary according to the legislation at the time of death.

The marital share (meação) of the surviving spouse is distinct from inheritance. The marital share is the right to half of the common assets, defined by the marital property regime. For example, under the partial community property regime, the surviving spouse has the right to half of the assets acquired for valuable consideration during the marriage.

Inheritance, on the other hand, applies to the personal assets of the deceased and assets subject to concurrent succession rules. In the first death, the surviving spouse's marital share is identified, and the heirs' shares are distributed. When the surviving spouse subsequently dies, their accumulated marital share and inheritance share are transmitted to their own heirs.

In situations where an assignment of inheritance shares occurred, interested parties must follow the rules for assignment of inheritance rights. Properly defining the shares ensures that the property transfer complies with the Código Civil (Civil Code, art. 1º,784) and is accepted by the real estate registry.

What documents are required for subsequent partition and successive probates at a notary office?

Executing a deed of subsequent partition and successive probates requires a complete document package. Organizing documents avoids requirements or delays during qualification by the notary public.

You will need to gather personal documents, proof of property ownership, and tax clearance certificates. All documents must be presented as certified copies or originals for digital verification.

The list includes:

• Updated death certificates for all deceased estate owners;
• Identity documents, CPF (taxpayer ID), and proof of residence for heirs and spouses;
• Updated marriage certificates for the deceased couple and heirs;
• Property title deeds or updated real estate registration certificates (matrículas) with certificates of encumbrances and pending lawsuits;
• Documents for personal property, such as bank statements, commercial registry certificates, or vehicle certificates (CRV);
• Tax clearance certificates from municipal, state, and federal tax authorities in the names of the deceased.

To verify property details and encumbrances, consult the full content or encumbrance certificate. Obtaining updated certificates in advance ensures a smooth notary process.

How does the ITCMD tax payment and notary costs work in successive probates?

The Tax on Causa Mortis Transfers and Donations (ITCMD) applies to each asset transfer that occurs. In successive probates, multiple taxable events take place, as the assets pass from the first deceased to the heirs and surviving spouse, and then from the spouse to the next generation.

The State Treasury Department calculates the tax rate based on the fair market value of the assets on the date of processing or assessment by the tax authority. ITCMD for the first death must be calculated and paid. Subsequently, the ITCMD due for the second death is calculated on the portion of assets that belonged to the second deceased.

Notary emolument costs relate to the acts performed in the public deed. The total amount is governed by the official fee table established by law in each State. When a subsequent partition occurs, the calculation applies to the value of the assets that were pending division, following guidelines of the Conselho Nacional de Justiça (National Council of Justice) Provimento CNJ nº 149/2023, Livro II.

To understand the origin of omitted assets, you can read the article on subsequent partition of assets left out of probate. That reading details how omitted assets must be included in subsequent tax calculations.

Document checklist

• [ ] Death certificate for all deceased persons (issued within the last 90 days)
• [ ] Updated Civil Registry certificates (birth/marriage) for heirs and deceased persons
• [ ] Official photo ID and CPF for all heirs and surviving spouses
• [ ] Updated real estate registration certificate (matrícula) issued by the competent Real Estate Registry Office
• [ ] Property tax clearance certificates (IPTU or ITR)
• [ ] Federal tax and Federal Active Debt clearance certificates in the names of the deceased
• [ ] Paid ITCMD tax calculation guides with respective State Treasury approvals
• [ ] Bar Association (OAB) card and full contact details of the assisting attorney

In practice

Case 1: Death of spouses on different dates without opening probate

João died in 2018 leaving a house. His wife, Maria, remained in the property and did not initiate probate. Maria died in 2024, leaving two children of the couple. The heirs went to the notary office to regularize the situation.

The notary drafted a single public deed for successive probates. The deed processed the marital share and inheritance of João and, subsequently, the inheritance of the share belonging to Maria. ITCMD was calculated separately for each taxable event. The children registered the deed at the real estate registry and obtained regularized ownership of the property.

Case 2: Discovery of a bank account after probate was completed

Ana died and her heirs completed extrajudicial probate at a notary office, dividing an apartment and a car. Two years later, the heirs discovered an investment account balance that had not been included in the initial division.

The interested parties submitted the previous deed to the notary office along with the bank statement showing the remaining balance. The notary executed a deed of subsequent partition strictly for the bank balance. Complementary ITCMD was paid, allowing the release of the funds from the financial institution without court intervention.

Frequent errors

• Ignoring the first death in extrajudicial probate: Trying to probate only the assets in the name of the second deceased person. Correction: Successive qualifications must be performed and tax paid for each death (Código Civil, art. 1º,784).
• Confusing marital share with inheritance: Believing the surviving spouse inherited all common assets. Correction: The marital share is divided according to the property regime, and the statutory share follows Civil Code rules for each death (Código Civil, art. 1º,784).
• Failing to pay ITCMD for each transfer: Paying tax only for the last deceased person. Correction: The Treasury Department requires proof of ITCMD payment for all opened successions.
• Omitting the qualification of heirs' spouses: Failing to include civil status and spouse data for heirs participating in the act. Correction: Depending on the heirs' property regime, spouses must sign and consent to the deed.
• Omitting a subsequently deceased heir: Omitting an heir who died after the first deceased. Correction: The succession of the post-deceased heir must be included in the successive probates to respect the chain of transmission.

Legal basis

• Lei nº 10.406/2002, art. 1º.784 — Establishes that inheritance is transferred immediately to the heirs upon the opening of succession (Código Civil [Civil Code], art. 1º,784).
• Lei nº 13.105/2015, art. 610 — Governs probate and asset partition by public deed when there is no will or incapable party (CPC [Code of Civil Procedure], art. 610).
• Lei nº 11.441/2007, art. 1º — Amends provisions and consolidates extrajudicial proceedings for probate, partition, separation, and divorce (Lei nº 11.441/2007, art. 1º).
• Provimento CNJ nº 149/2023, Livro II — Consolidates the National Code of Normas of the National Corregedoria of Justice for notarial and registry services (Provimento CNJ nº 149/2023, Livro II).

Frequently asked questions

What are subsequent partition and successive probates in a public deed?

Subsequent partition is the extrajudicial division of assets omitted or unknown in the original probate (CPC, art. 610). Successive probates occur when two or more individuals from the same family die in sequence without previous asset partition. Both acts can be executed by public deed at a notary office, provided legal requirements are met.

How to qualify heirs in a subsequent partition if the surviving spouse died without a prior probate?

When the surviving spouse dies before probate or subsequent partition is conducted, the notary qualifies the estate of this deceased person represented by their direct heirs or appointed estate administrator (Código Civil, art. 1º,784). The notarial act settles both transfers in the same document or connected executions with full legality.

What are the rules of succession for the surviving spouse and heirs in successive probates?

Succession respects the time of death of each deceased person and the marital property regime. The inheritance of the first deceased is transferred to their heirs and the surviving spouse. Upon the subsequent death of that spouse, their marital share and inheritance share pass to their respective line of succession.

What documents are required for subsequent partition and successive probates at a notary office?

You must present death certificates for all deceased individuals, identity documents and CPF for all parties, updated marriage certificates, proof of asset ownership, tax clearance certificates, and proof of ITCMD payment or tax exemption for each succession.

How does the ITCMD tax payment and notary costs work in successive probates?

Each death constitutes a taxable event for the Tax on Causa Mortis Transfers and Donations (ITCMD). Therefore, tax applies to the first transfer and another tax to the second transfer. Notary office fees follow the state official table based on asset values and the number of executed acts (Lei nº 8.935/1994, art. 6º).

Next steps

• Gather all death certificates and documentation for assets pending division;
• Request updated Civil Registry certificates for heirs and deceased individuals;
• Consult your attorney or public defender's office to structure the partition plan;
• Submit the documents to the notary office for preliminary document analysis and issuance of ITCMD tax guides.

Contact the notary office

If you need to regularize subsequent partition and successive probates, contact a notary office in your city. The notary staff will provide necessary guidance on required documentation, offering supportive and secure assistance for the execution of your public deed.

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Content produced by CartorIA based on official legal sources, under technical supervision.

Territorial scope: Federal rule (applicable throughout the national territory, with complementary regulations in state Codes of Norms).

Date of last legal review: September 18, 2026.

Informational content; does not replace legal advice for specific cases.

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