Probate and Division of the Estate: Court and Notary Routes in Brazil

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Choosing between a judicial and an extrajudicial inventory determines the pace, cost, and complexity of transferring assets after a death, and depends on legal requirements that either rule out or require a judge’s involvement.

What sets the two procedures apart

An inventory (inventário) is the procedure used to identify the assets the deceased left behind, pay the estate’s debts, and transfer rights to the heirs. Brazilian law allows two routes to that end, each with its own prerequisites. The extrajudicial route, created by Law 11.441/2007 and now governed by Article 610 of the Code of Civil Procedure, takes place entirely at a notary’s office (cartório de notas) by public deed. The judicial route is handled by the competent court and follows the procedure set out in Articles 610 and following of the same code.

The essential difference lies in whether there is a dispute and whether any heirs lack legal capacity. When the heirs are adults of full legal capacity and agree on how to divide the estate, the notary route is available. If there is a conflict, a minor or legally incapacitated heir, or issues that require a court decision, the procedure must move to the courts.

Requirements for the extrajudicial route

Article 610, paragraph 2, of the Code of Civil Procedure requires the assistance of an attorney in either route, including for the public deed. In addition, the extrajudicial route presupposes full agreement among the successors, civil capacity of all of them, and, historically, the absence of a will. Resolution 35/2007 of the National Council of Justice details the notarial acts allowed and standardizes how notaries act.

The no-will requirement has recently been relaxed. The deed may now be executed even when a will exists, provided the registration and opening formalities have been met and the interested parties remain in agreement. This trend broadens the reach of out-of-court resolution, in line with the policy of reducing litigation.

Once the deed is executed, the document can be used directly to register real estate, transfer vehicles, and access bank accounts, with no court order required. Speed is the main appeal: when the paperwork is complete, the process can wrap up in a matter of weeks.

An inventory (inventário) is the procedure used to identify the assets the deceased left behind, pay the estate’s debts, and transfer rights to the heirs.

When the court route is unavoidable

Several circumstances rule out the notary route. The presence of an heir without legal capacity calls for oversight by the Public Prosecutor’s Office (Ministério Público) and review by a judge, to protect the vulnerable party’s interests. Disagreement over the division, concealment of assets, or a dispute over who qualifies as an heir also requires a court case, the only forum able to resolve the dispute.

In the judicial procedure, an administrator of the estate (inventariante) is appointed, initial and final statements are filed, the assets are appraised, and the tax owed is calculated before the court approves the division. The procedure comes in a simpler form, the summary inventory (arrolamento), used when the heirs are capable and in agreement but need the court for some other reason, and the full inventory proper, reserved for more complex cases or disputes.

Note that Article 611 of the Code of Civil Procedure sets a period of two months, counted from the opening of the succession, to start the inventory. Missing the deadline does not invalidate the procedure, but it may trigger a penalty on the Causa Mortis and Gift Transfer Tax (Imposto de Transmissão Causa Mortis e Doação), a state-level tax that must be paid before the division can be completed in either route.

How to choose between the two routes

Choosing the right route requires looking at the specific case. Agreement among heirs of full capacity, no dispute, and complete documentation point to the public deed, which saves time and involves fewer formalities. The presence of heirs lacking capacity, disagreements, or complex asset issues moves the matter to the court, where judicial protection safeguards the rights in dispute.

The two routes, then, do not compete with each other. They complement one another depending on the circumstances of each succession. Assessing the legal requirements in advance avoids rework and steers the heirs to the procedure that best fits the reality of the estate.

Frequently Asked Questions

Who can choose an extrajudicial inventory?

Heirs who are adults of full legal capacity and agree on how to divide the assets can choose it, with the mandatory assistance of an attorney. The presence of a minor or legally incapacitated heir, or any disagreement over the division, rules out the notary route and requires the judicial procedure.

Can an extrajudicial inventory be done if there is a will?

This has become possible in specific situations, provided the registration and opening formalities for the will have been met and all interested parties remain in full agreement. The conditions should be reviewed before the deed is executed, because not every will situation allows the notary route.

What is the deadline to open the inventory, and what happens if it is missed?

Article 611 of the Code of Civil Procedure sets a period of two months from the date of death. Missing it does not prevent the procedure from going forward, but it may lead to a penalty on the state transfer tax, making the succession more expensive and delaying the regularization of the assets.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.