Estate Inventory in Brazil: How Does It Work?

When discussing inheritance and the division of assets in Brazil, it is essential to understand how the probate process works. This legal procedure is mandatory to formalize the transfer of the deceased’s assets to their heirs.

Many foreigners, especially Americans with family members or assets in Brazil, have doubts about the applicable rules and legal requirements to initiate the probate process in the country. Additionally, they often worry about the duration of the process, the costs involved, and each heir’s rights.

In Brazil, probate can be conducted either through judicial or extrajudicial proceedings, depending on the circumstances of the case. However, regardless of the chosen method, it is a technical and complex procedure that requires the assistance of a lawyer specialized in Family and Succession Law.

In this article, as a lawyer specializing in family and succession law, I will explain what probate is in Brazil, the existing types, how each stage works, and all the relevant aspects of the procedure. Read on to learn more!

1. What is estate inventory in Brazil?

2. Judicial inventory: What it is, when it is required, and how it works.

3. Extrajudicial inventory: What it is, when it is required, and the necessary requirements and documents.

4. Is estate inventory mandatory even when heirs live outside Brazil?

5. What is the deadline for opening an estate inventory in Brazil?

6. Is a lawyer required for estate inventory in Brazil?

If you live outside Brazil and need to initiate an estate inventory, this article was written to clarify all your doubts.

1. What Is Estate Inventory in Brazil?

Estate inventory is the legal procedure that identifies and formalizes the deceased person’s assets, also known as the estate. Only after completing the inventory can the deceased’s assets, rights, and obligations be legally transferred to the heirs.

The main objectives of estate inventory include:

• Identifying all assets, debts, and rights of the deceased;
• Defining the legal and testamentary heirs;
• Assessing and paying applicable taxes;
• Proceeding with the distribution of assets among heirs.

In Brazil, estate inventory is mandatory, regardless of the value or number of assets involved. No heir can sell, transfer, or register the deceased’s assets without completing the estate inventory. This requirement applies even when heirs reside outside Brazil, as we will discuss further.

There are two types of estate inventory in Brazil: judicial and extrajudicial. The choice between them depends on the family’s circumstances and the specific succession situation. Let’s examine each type in detail.

2. Judicial Estate Inventory: What It Is, When It Is Required, and How It Works?

Judicial estate inventory is a procedure conducted through the Brazilian Judiciary to formalize the transfer of the deceased’s assets (referred to as de cujus) to heirs and legatees. This step is mandatory for legal ownership transfer.

In Brazil, assets do not transfer automatically upon death. The estate inventory enables this process, either judicially or extrajudicially. When the legal requirements for extrajudicial inventory are not met, judicial inventory is the only available option.

When Is Judicial Estate Inventory Mandatory?

Judicial estate inventory is required in the following cases:

• When there are minor or legally incapable heirs;
• When there is a dispute among heirs over asset distribution;
• When a valid will exists (in most cases, although there are exceptions);
• When legal or registry office requirements mandate judicial inventory;
• When there is no consensus among heirs regarding asset distribution;
• When any heir or interested party resides outside Brazil and cannot directly participate in an extrajudicial process.

Judicial Estate Inventory Process: Step by Step

The judicial estate inventory process in Brazil follows the Civil Procedure Code and involves the following steps:

1st Step: Opening the Estate Inventory

The estate inventory must be initiated within two months of the date of death. Otherwise, a penalty will be applied to the applicable tax (ITCMD). This deadline varies by state but is generally 60 days. A lawyer must file the request for inventory proceedings before the competent court (last domicile of the deceased in Brazil).

2nd Step: Appointment of the Estate Administrator

The judge appoints an estate administrator who is responsible for managing the assets until the process is completed. The administrator is usually the surviving spouse or one of the heirs. Their duties include keeping financial records, listing assets, paying debts and taxes, and ensuring the smooth progress of the estate inventory.

3rd Step: Asset Evaluation

The estate administrator submits an initial declaration listing all the deceased’s assets, rights, and debts. The assets are then appraised to determine the estate’s total value.

4th Step: Debt and Tax Payments

Before asset distribution, the estate’s debts and the ITCMD (estate tax) must be paid.

5th Step: Asset Distribution

After taxes and debts are settled, the judge approves the asset distribution based on either an agreement among heirs or, in the absence of an agreement, a court ruling.

6th Step: Issuance of the Final Distribution Document

Once the process is finalized, the Formal de Partilha (final distribution document) is issued, allowing heirs to transfer assets into their names at relevant institutions such as property registries, the DMV, and banks.

Required Documents

The most common documents required for judicial probate in Brazil include:

• Death certificate of the deceased;

• Personal identification documents of the deceased and heirs: RG (ID card), CPF (Taxpayer Identification Number), birth or marriage certificates;

• Marriage certificate of the deceased (if applicable);

• Property ownership documents: Deeds for real estate, vehicle titles, bank account statements, stocks, and other assets;

• Income tax return of the deceased;

• Negative tax debt certificates to confirm that the deceased had no outstanding fiscal obligations;

• Will certificate, if a will exists.

It is important to note that heirs residing abroad must provide a consular power of attorney or appoint a legal representative in Brazil to act on their behalf during the process.

3. Extrajudicial Estate Inventory: What It Is, When It Is Required, and Necessary Documents.

Extrajudicial estate inventory is conducted at a notary office (cartório de notas) rather than in court. It is governed by Law No. 11,441/2007 and the Brazilian Civil Procedure Code.

This procedure is faster, simpler, and less expensive than the judicial process, as it does not require court involvement. However, it is only possible when certain conditions are met.

When is Extrajudicial Probate Mandatory?

Probate is mandatory whenever there are assets to be distributed in Brazil, whether the deceased was Brazilian or a foreign national with property in the country. If probate is not completed, heirs will face legal restrictions, such as the inability to sell, transfer, or formalize ownership of any assets left by the deceased.

Requirements for Extrajudicial Probate

For the probate process to be conducted at a notary office in Brazil, the following requirements must be met:

• All heirs must be of legal age and fully capable;

• There must be no valid will registered in Brazil;

• All heirs must agree on the distribution of assets;

• A lawyer’s presence is mandatory: The legal expert will act as a legal assistant to all parties involved and must sign the public deed;

• Existence of assets to be inventoried in Brazil: These may include real estate, bank accounts, investments, or other financial assets.

If the deceased left a will, but it has already been previously registered, deemed valid, and fulfilled by a court, extrajudicial probate may be authorized.

Required Documents

The Extrajudicial Inventory process requires a list of documents related to the deceased, the heirs, and the assets to be distributed. As a specialist in Family and Succession Law, I understand that handling inheritance matters while residing abroad can raise questions and concerns. Below is a detailed list of the necessary documents.

Personal Documents of the Deceased:

• Death certificate

• Identification document and CPF (Brazilian Taxpayer Registry)

• Marriage or stable union certificate (if applicable)

Documents of the Heirs:

• Identification document and CPF

• Marriage or stable union certificate (if applicable)

• Information regarding the marital property regime

Documents of the Assets:

• Updated real estate certificates

• Vehicle ownership documents

• Bank and investment statements

• Stock certificates, business shares, or other valuable assets

Each Brazilian state may require additional documents or have specific formalities regarding document submission.

How does the procedure work?

The procedure is relatively simple, as long as it is well guided by a lawyer:

• Gathering of complete documentation;

• Drafting of the public deed by the lawyer;

• Calculation and payment of the ITCMD (Inheritance and Donation Tax);

• Signing of the public deed of inventory and division at the notary office;

• Registration of the division at property registry offices, the Department of Traffic (Detran), or financial institutions, depending on the type of asset.

The lawyer will be responsible for ensuring that all legal aspects are met, avoiding future issues.

4. Is the inventory mandatory even when the heirs live abroad?

When we talk about inheritance in Brazil, the inventory is a mandatory and essential step for the transfer of assets left by a deceased person to their heirs. Many clients who reside abroad, especially in the United States or other countries, ask whether they need to conduct the inventory in Brazil, even if they live overseas. The answer is yes.

Even if living outside Brazil, the heir or interested party must carry out the inventory in Brazil whenever there are assets located within Brazilian territory. The inventory is mandatory for the division to be carried out and for the assets to be effectively transferred to the heirs. I emphasize that the residence of the heirs abroad does not exempt this obligation. The procedure must comply with Brazilian laws.

5. What is the deadline to initiate the Inventory in Brazil?

The deadline to initiate the inventory in Brazil is 60 days from the date of death. This deadline is established by tax legislation and is directly related to the payment of the Inheritance and Donation Tax (ITCMD), which is under state jurisdiction.

If the inventory is not started within the 60-day period, the process can still be carried out. However, the heirs will be subject to fines and interest on the ITCMD. The amount of the fine varies depending on the state where the tax is due. In some cases, the fine can reach up to 20% of the tax amount owed, in addition to late payment interest.

You may be wondering: “What happens if I miss the legal deadline?” Even after the 60-day period, the inventory can still be done normally. The main consequence will be the payment of fines and interest on the ITCMD. The inventory does not expire, meaning it can be done at any time. However, the longer you wait, the higher the costs may be, especially if there is an increase in asset value or an accumulation of taxes.

6. Inventory in Brazil: Is a lawyer required?

Brazilian legislation expressly requires the presence of a lawyer in any type of inventory, whether judicial or extrajudicial. This legal requirement exists because the inventory is a technical and complex procedure that involves civil and tax laws, tax calculations, document analysis, and asset regularization.

For foreigners, the presence of a lawyer becomes even more essential, as they:

• Represent the client in Brazil;

• Ensure that the process proceeds correctly, even from a distance;

• Prevent blockages and complications in the transfer of assets;

• Handle the regularization of documents issued outside Brazil;

• Correctly calculate the ITCMD to avoid tax audits;

• Reduce the risk of litigation and family disputes.

A specialized lawyer also takes care of sworn translations of documents, the legalization of international powers of attorney (via Hague Apostille), and representing heirs who cannot be present in the country.

Conclusion

In this comprehensive guide, we have seen that the inventory process in Brazil is mandatory whenever a person passes away leaving assets, rights, or debts to be shared among the heirs. Whether the deceased or the heirs reside in Brazil or abroad, the initiation of the inventory is necessary to regularize the transfer of the inheritance and ensure the correct division of assets.

The process can be judicial or extrajudicial, depending on the specific situation of the family. However, regardless of the modality, Brazilian law requires the presence of a lawyer to handle the inventory. This obligation exists because the procedure involves complex legal matters such as document analysis, tax calculations, interpretation of Brazilian law, and property regularization.

For those living outside Brazil, seeking the assistance of a lawyer specializing in Family and Inheritance Law in Brazil is essential. The professional will guide the entire process safely, practically, and efficiently, even from a distance, representing the heirs and ensuring compliance with all legal requirements. Additionally, the lawyer can provide guidance on the necessary documents, deadlines, taxes, and all other important details for the completion of the inventory.

Therefore, if you have assets or heirs in Brazil, or if you are dealing with the death of a family member who left assets in the country, it is essential to seek the support of a specialized lawyer. Only then can you have the legal security necessary to ensure your rights and avoid future issues related to the division of assets.

That’s all for now, and I hope I’ve been helpful.

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