What is the deadline to open probate in Brazil?

The legal deadline is 60 days from the date of death (art. 611, CPC). Filing late results in a penalty on the ITCMD tax, ranging from 10% to 20% depending on the state. It is essential to begin the process as soon as possible to avoid tax penalties.

What is the difference between judicial and extrajudicial probate?

Extrajudicial probate is done at a notary office through a public deed, making it faster and cheaper. It requires consensus among all heirs and no minors or incapacitated persons. Judicial probate proceeds in court and is mandatory when there is dispute, minors, incapacitated persons, or a will.

How much is the ITCMD tax in São Paulo?

In São Paulo, the ITCMD is 4% of the value of transmitted assets. The calculation is based on the assessed property value (IPTU) or market value for other assets. There is an exemption for residential property up to 5,000 UFESPs transmitted to the surviving spouse.

What is the legítima (forced share) in inheritance?

The legítima corresponds to 50% of the deceased's estate, mandatorily reserved for necessary heirs (descendants, ascendants, and spouse/partner). The deceased may only freely dispose of the other half through a will. This protection cannot be overridden by the testator's wishes.

Can an heir be excluded from inheritance?

Yes, through indignity (art. 1,814, CC) when the heir commits serious acts against the deceased such as homicide or slander, or through disinheritance expressed in a will (art. 1,961, CC) in cases provided by law such as abandonment or serious insult.

Estate and Inheritance in Brazil: Complete Guide

Direct Answer

Probate (inventário) is the mandatory procedure for transferring the deceased’s assets to heirs and can be carried out judicially (in court) or extrajudicially (at a notary office). The legal deadline for filing is 60 days after death, subject to a tax penalty. Necessary heirs (descendants, ascendants, and spouse) are entitled to the legítima (50% of the estate), and the deceased may only freely dispose of the other half through a will.

What Is Probate (Inventário)

Probate is the legal procedure that assesses the deceased’s estate (espólio), identifies heirs and creditors, pays debts, and distributes remaining assets. It is governed by the Civil Code (arts. 1,784 to 1,856), the CPC (arts. 610 to 673), and Law 11,441/2007 (extrajudicial probate).

Opening the Probate

Probate must be filed in the court of the deceased’s last domicile (art. 48, CPC) within 60 days of death (art. 611, CPC). Standing to request the opening is broad:

Surviving spouse or partner
Any heir
Legatee
Executor (testamenteiro)
Estate creditor
Public Prosecutor (when an incapacitated person is involved)
Tax Authority

Judicial vs. Extrajudicial Probate

Extrajudicial Probate (Notary Office)

Established by Law 11,441/2007, it is carried out through a public deed at a notary office. It is the fastest and most cost-effective option.

Requirements:

Consensus among all heirs on the division
No minor or incapacitated heirs
No will (with recent exceptions)
Attorney representation (mandatory)
No dispute among heirs

Advantages:

Timeline: 30 to 90 days
Lower cost than judicial
Less bureaucracy
Not dependent on court scheduling

Judicial Probate

Mandatory when the requirements for extrajudicial probate are not met. Proceedings take place in Succession or Family Courts (depending on the jurisdiction).

Mandatory situations:

Minor or incapacitated heirs
Disagreement among heirs on the division
Existence of a will (general rule)
Estate creditor requesting participation
Doubts about the existence or validity of a will

Steps in judicial probate:

Initial petition with appointment of estate administrator
Administrator’s oath
First declarations (listing of assets, heirs, and debts)
Asset appraisal
Challenges and qualifications
ITCMD calculation and payment
Final declarations
Partition judgment
Issuance of formal partition document

Average timeline: 1 to 3 years

Comparison

Aspect	Extrajudicial	Judicial
Location	Notary office	Court
Timeline	30-90 days	1-3 years
Cost	Lower	Higher
Requirement	Consensus, no minors	Any situation
Attorney	Required	Required
Will	No (general rule)	Yes

ITCMD: Inheritance Tax

The ITCMD (Tax on Transmission Causa Mortis and Donation) is a state tax levied on the transfer of assets through inheritance or donation.

Rates by State

State	Rate	Notes
São Paulo	4%	Fixed
Rio de Janeiro	4% to 8%	Progressive
Minas Gerais	5%	Fixed
Rio Grande do Sul	3% to 6%	Progressive
Federal District	4% to 6%	Progressive

Tax Base

Real estate: Assessed value (IPTU) or state reference value
Vehicles: FIPE table
Investments: Balance on the date of death
Companies: Net asset value of shares/quotas

Common Exemptions (São Paulo)

Surviving spouse’s residential property up to 5,000 UFESPs
Bank deposits up to 1,000 UFESPs
PGBL/VGBL pension amounts (subject to ongoing legal debate)

Late Filing Penalty

Opening probate after 60 days from death triggers a penalty on the ITCMD:

São Paulo: 10% penalty
Rio de Janeiro: 10% to 20% penalty
Minas Gerais: 10% penalty

Heirs’ Rights

Necessary Heirs

Necessary heirs (art. 1,845, CC) are:

Descendants (children, grandchildren, great-grandchildren)
Ascendants (parents, grandparents)
Surviving spouse or partner Learn more about our real estate law services.

These heirs are entitled to the legítima: 50% of the deceased’s estate, which cannot be reduced by will.

Order of Inheritance

Descendants + spouse (concurrent in individual assets)
Ascendants + spouse (concurrent: 1/3 for spouse if both parents survive)
Spouse alone (entire estate)
Collateral relatives up to 4th degree (siblings, nephews/nieces, uncles/aunts, cousins)
Municipality, Federal District, or Union (unclaimed estate) Learn more about our real estate law services.

The legítima corresponds to 50% of the estate and is mandatorily reserved for necessary heirs. The testator may only freely dispose of the available portion (the other 50%).

Practical example: If the deceased left an estate worth R$ 2 million, the necessary heirs are entitled to at least R$ 1 million (legítima). The deceased could have disposed of up to R$ 1 million (available portion) to anyone through a will.

Testamentary Succession

Types of Wills

Public will (art. 1,864, CC): Executed by a notary in the presence of two witnesses. It is the safest form and hardest to challenge.

Sealed will (art. 1,868, CC): Written by the testator or third party, approved by a notary, with an approval certificate sewn and sealed.

Private will (art. 1,876, CC): Written and signed by the testator, read before three witnesses. Requires judicial confirmation after death.

Will Limitations

The testator may dispose of up to 50% of their estate through a will (available portion). The other 50% (legítima) belongs mandatorily to necessary heirs. A will that encroaches on the legítima is reducible, not void.

Restrictive Clauses

The testator may impose clauses on assets from the available portion:

Inalienability: The heir cannot sell the asset
Non-attachability: The asset cannot be seized for debts
Incommunicability: The asset is not shared with the heir’s spouse

Required Documents for Probate

From the Deceased

Death certificate
Marriage certificate (if married) or common-law marriage certificate
Identity documents (RG, CPF)
Last income tax return
Will (if any)

For the Assets

Real estate registration certificates
Property tax records (IPTU)
Vehicle documents (CRLV)
Bank and investment statements
Company articles of association
Tax clearance certificates

From the Heirs

Identity documents and CPF
Birth or marriage certificates
Proof of address
Power of attorney for the lawyer

Estate Administrator: Role and Responsibilities

The estate administrator (inventariante) manages the estate, appointed by the judge per the order in art. 617 of the CPC:

Surviving spouse or partner
Heir in possession of the assets
Any heir
Legatee
Executor
Suitable unrelated person

Duties:

Represent the estate in and out of court
Manage assets until partition
File first and final declarations
Pay estate debts with court authorization
Request asset appraisal

Estate Planning

To avoid the costs and delays of probate, estate planning during one’s lifetime is recommended:

Donation with usufruct reservation: Transfers ownership in life while retaining use
Family holding company: Concentrates assets in a company, facilitating quota transfer
Will: Defines the destination of the available portion
Life insurance: Does not form part of the estate (art. 794, CC)
Private pension (VGBL/PGBL): Debate over inclusion in the estate

When to Consult an Attorney

Estate and inheritance matters require specialized guidance in family and succession law. Consult an attorney for:

Opening probate within the legal deadline
Choosing between judicial and extrajudicial probate
ITCMD calculation and planning
Defense of inheritance rights
Challenging a will or partition
Preventive estate planning

ZS Advogados Associados has a specialized succession law team offering comprehensive advisory services on probate, partition, and estate planning. Contact us for a consultation.

Conclusion

Probate is a mandatory and indispensable procedure for regularizing assets after death. The choice between judicial and extrajudicial channels depends on the specific circumstances of each case. Observing the 60-day deadline, correctly calculating the ITCMD, and protecting the rights of necessary heirs are fundamental aspects. Seeking specialized legal guidance from the outset ensures a faster, more cost-effective, and secure process for everyone involved.

This article is for informational purposes only and does not constitute legal advice. Each case has specific circumstances that should be analyzed by a qualified attorney.