Judicial and Extrajudicial Probate: When to Choose Each Path

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

The choice between judicial and extrajudicial probate determines the speed, cost and complexity of dividing assets after a death, and it can mean the difference between wrapping up the succession in a matter of weeks and dragging it through the courts for years.

The dividing line between the two paths

Law No. 11.441/2007 introduced extrajudicial probate into Brazilian law. It is handled at a notary public’s office (cartório de notas) by public deed. Before that law, every transfer of property upon death had to go through a court, with all the costs and delays the process entails.

The Code of Civil Procedure consolidated the system in Article 610 et seq., setting objective requirements for heirs to use the notary route. The rule is simple: if all the heirs agree, all of them have full legal capacity, and there is no will, the notary’s door is open. If any one of these elements is missing, the only available path is the courts.

The deciding factor is not what the heirs want, but the factual and legal makeup of the estate. Trying to force the extrajudicial route when there is a legal obstacle only postpones the judge’s inevitable involvement, and it means redoing work and paying costs twice.

Requirements for extrajudicial probate

Four cumulative conditions authorize the notary procedure, under Article 610, paragraph 1º, of the Code of Civil Procedure, read together with Resolution No. 35/2007 of the National Council of Justice. All heirs must be adults with legal capacity, with no interdicted person, no pregnant woman carrying a recognized unborn child, and no minor among the interested parties.

The second requirement is full agreement on how the estate will be divided. Any disagreement over who receives what, how the assets are valued or the share each person is entitled to makes a public deed unworkable. The third condition is the absence of a will, although the Superior Court of Justice has already allowed extrajudicial probate even when there is a will, provided the will has been opened, registered and carried out through the courts, or has lapsed.

Finally, a lawyer’s assistance is mandatory. One lawyer may represent all the heirs, or each heir may have his or her own. The lawyer’s role is not a mere formality: the lawyer is responsible for ensuring the division is lawful, checking the tax calculations and preventing future grounds for invalidity.

All heirs must be adults with legal capacity, with no interdicted person, no pregnant woman carrying a recognized unborn child, and no minor among the interested parties.

When the judicial path is required

Judicial probate becomes mandatory in any situation that falls outside the extrajudicial route. The presence of a minor, an incapacitated or absent heir, or an unborn child automatically places the case before the family and probate court, with the mandatory participation of the Public Prosecutor’s Office (Ministério Público) as guardian of the legal order.

Disputes among the heirs are another factor that pulls a succession into court. Disagreements over the validity of gifts made during the decedent’s lifetime, the return of gifts to the estate for equalization (colação), concealment of assets by an heir, recognition of a posthumous stable union, or the existence of an unregistered child all require the presentation of evidence and a court decision. No notary has the authority to resolve such conflicts.

A valid and effective will also generally leads to the courts, although case law has been loosening this requirement. Provimento No. 100 of the National Council of Justice and decisions of the Superior Court of Justice have been allowing extrajudicial probate when the will has already been registered and carried out in court, or when it has lapsed with the passage of time.

Costs, timelines and strategy

Extrajudicial probate is usually completed in an average of thirty to ninety days, counted from the point when all the documentation has been gathered. The costs include notary fees, the state-level ITCMD (inheritance and gift tax) and attorney’s fees, with no court costs. The speed pays off when the estate is of low or moderate complexity and the heirs get along well.

Judicial probate, on the other hand, can last from two to five years, and may run past a decade when there are disputes over assets, complex divisions or assets located in different judicial districts. The costs add up to court fees, attorney’s fees, experts and, at times, separate lawyers for each heir in conflict. In return, the judge has broad powers to resolve disputes, order appraisals, freeze assets and protect the interests of those who lack legal capacity.

The right professional strategy begins with a precise assessment of what the estate comprises, who the heirs are and whether there are contested facts. Taking a family to a notary when a dispute is brewing only delays the lawsuit and leads to frustration. Conversely, going to court when every requirement of Article 610 is met needlessly burdens the succession and prolongs the heirs’ financial mourning.

Frequently Asked Questions

Is it possible to switch from judicial to extrajudicial probate while the case is pending?

Yes, as long as all the legal requirements are met at the time of the switch. If the court case was filed when there was a minor heir who has since reached the age of majority, or if an initial dispute has been resolved by agreement among the heirs, the judge may approve the withdrawal and send the parties to the notary’s office. This usually cuts the time left to complete the division significantly.

How long after a death does the family have to open probate?

The National Tax Code and state laws generally set a deadline of sixty days from the date of death to file for probate, under penalty of a fine on the ITCMD. The deadline does not extinguish the right to the inheritance, which remains intact, but missing it triggers a tax penalty that can double the amount of tax owed. Starting within the deadline is a basic tax-saving strategy.

How does a will affect the choice of path?

Historically, the existence of a will forced the judicial path, a rule that more recent case law has been relaxing. In successive rulings, the Superior Court of Justice has allowed extrajudicial probate when the will was previously registered and carried out in court, or when it lapsed because the testamentary heir died before the testator. In ordinary situations, however, the existence of a valid will still requires that it be opened, registered and carried out in court before any public deed of division can be made.

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