What a Probate Lawyer Does: When It Is Mandatory and What It Resolves
Quick answer: the inventário (probate) lawyer surveys the deceased's assets, defines the appropriate route, conducts the partilha (the division of the estate among the heirs) and is responsible for assessing the ITCMD (Brazil's inheritance and gift tax). Their presence is mandatory on both paths, including in the notarial deed: Article 610, §2, of the Code of Civil Procedure only authorizes the tabelião (notary public) to draw up the act if all interested parties are assisted by a lawyer.
The phone call usually comes the week after the funeral. The patriarch has died and what he left behind does not fit into a simple list: quotas in two operating companies, a farm in the Triângulo Mineiro region, a commercial suite in São Paulo and investments at three financial institutions. The family knows it needs to open probate. What it does not yet know is that much of the cost and of the timeline will be defined before the first filing.
Whoever chooses the probate lawyer is choosing who makes these initial decisions. Which route to follow, who will be appointed inventariante (the estate administrator), how the company quotas will be valued, in which state the tax is owed, what has to be resolved in court even with the family in agreement. None of these answers is automatic, and all of them are reflected in what actually reaches the heirs.
A lawyer is mandatory in probate, including at the notary's office
There is a widespread misunderstanding that extrajudicial probate does not require a lawyer because it is done at a notary's office. It does. Article 610 of the Code of Civil Procedure sets the rule in two steps. §1 authorizes that, where all interested parties are legally capable and in agreement, the inventário and the partilha be carried out by public deed, a document suitable for any registration act and for withdrawing funds held at financial institutions. §2 conditions that path: the tabelião only draws up the deed if all interested parties are assisted by a lawyer or public defender, whose credentials and signature must appear in the notarial act.
The difference between the two routes does not lie in the presence of the lawyer. It lies in where the procedure runs and in what happens when someone disagrees.
| Aspect | Judicial probate | Extrajudicial probate |
|---|---|---|
| Where it runs | Court of the deceased's domicile in Brazil (CPC, art. 48) | Notary's office (tabelionato de notas) freely chosen by the parties |
| Lawyer | Mandatory | Mandatory, with credentials and signature in the deed (CPC, art. 610, §2) |
| Agreement among the heirs | Not required | Indispensable |
| Judicial confirmation of the deed | Not applicable | Not required; the deed is a valid instrument for the registries |
| Disagreement over assets or shares | Decided in the same court | Rules out the notarial route |
| Matters that depend on evidence | May be referred to ordinary proceedings (CPC, art. 612) | Does not allow the taking of evidence |
What the extrajudicial route gains is time. What it demands is real consensus, not consensus on the surface. Whoever signs the deed to quickly close a poorly resolved dispute usually returns to the subject months later, now with a title already registered in the way.
What CNJ Resolution 571/2024 changed, and what it did not
For years, two situations automatically closed the notary's door: a minor or legally incapable heir, and the existence of a will. CNJ Resolution No. 571, of August 26, 2024, amended CNJ Resolution No. 35/2007, which governs the drawing up of notarial acts of inventário and partilha, and began to allow the public deed in these two situations, with precise requirements. It is a change in notarial procedure, and it does not eliminate judicial oversight or that of the Ministério Público (Brazil's public prosecution service).
Where there is a minor or legally incapable heir, the deed is allowed provided that payment of the quinhão hereditário (the heir's share of the estate) or of the meação (the surviving spouse's own half of the marital assets) occurs as an undivided fractional interest in each of the inventoried assets and there is a favorable opinion from the Ministério Público, on which the effectiveness of the act depends. Acts of disposition over the assets or rights of the minor or incapable person are prohibited, and if there is an objection by the Ministério Público or by an interested third party, the procedure is submitted to the competent court.
The undivided-interest requirement deserves attention from anyone with significant assets. It prevents division by convenience, the kind in which one heir keeps the property and another the company quotas: all of them become co-owners of each asset. For a business estate, this co-ownership may be exactly what the family does not want, and the notarial route ceases to be an advantage.
Where there is a will, the resolution authorizes consensual inventário and partilha by public deed provided that the interested parties are all represented by a duly qualified lawyer, are legally capable and in agreement, and there is express authorization from the competent succession court in a proceeding for the opening and execution of a valid and effective will, by a final and unappealable judgment. The judicial stage therefore remains; what moves to the notary's office is the partilha.
There is also a point that goes unnoticed and brings down the entire plan: once the will's certificate is presented, if a provision acknowledging a child or any other irrevocable declaration is found, drawing up the deed is prohibited and the inventário must necessarily be conducted through the courts. Reading the will before promising the family a timeline is part of the job.
The work that happens before the case is opened
The cost of probate takes shape early. Article 611 of the Code of Civil Procedure requires the proceeding to be instituted within two months counted from the opening of the succession, and concluded within the following twelve months, deadlines the judge may extend. The procedural deadline is one of the topics of the deadline to open probate; the other is fiscal, because state legislation usually ties a penalty to the late payment of the ITCMD, and that is the penalty that weighs.
Before any filing or draft, what is done is fact-gathering. Up-to-date property records for the real estate, corporate holdings and what the articles of association say about the death of a partner, accounts and investments, the deceased's debts, guarantees given to third parties, insurance and private pension plans. This mapping defines the route and the tax base, and it frequently reveals liabilities no one knew about.
The inventariante is the central figure. Article 617 of the Code of Civil Procedure sets the order of preference for the appointment, headed by the surviving spouse or partner, and Article 618 lists their duties, beginning with representing the espólio (the estate of the deceased, which acts as a party in its own right) actively and passively, in and out of court. Once appointed and sworn in, they have twenty days to submit the first declarations, under Article 620. In an estate with an operating business, this choice is a strategic decision, not a formality.
The cost components must be sized at the outset: the ITCMD, addressed in detail in who pays the ITCMD in probate, the court costs or the notarial and registry fees, the certificates and the asset appraisals.
What separates simple probate from a complex estate
Probate with one property, two accounts and two heirs in agreement is a procedure. Beyond a certain asset composition, the work changes in nature.
The first dividing line is the corporate holding. Quotas and shares must be valued, and the criterion adopted alters the tax base and the balance among the heirs' shares. The articles of association may provide for apuração de haveres (a buyout valuation of the deceased partner's stake) instead of the heirs joining the company, and the estate must continue exercising partner rights while the partilha is not concluded. A poorly conducted business succession contaminates the company's operations, not just the proceeding.
The second is geographic dispersion. Where there is real estate in more than one state, the inventário is still a single one, in the court of the deceased's domicile in Brazil, under Article 48 of the Code of Civil Procedure. It is the tax that is split. Under the Constitution, in Article 155, §1, the ITCMD on real estate is owed to the state where the asset is located, while on movable property, securities and credits it is owed to the state where the deceased was domiciled, as worded by Constitutional Amendment 132/2023. A farm in Minas Gerais, an apartment in São Paulo and financial investments mean more than one state tax authority, each with its own payment forms and documentation requirements.
The third is assets abroad. Article 23, item II, of the Code of Civil Procedure assigns to the Brazilian judicial authority, to the exclusion of any other, the inventário and the partilha of assets located in Brazil. The reverse reading also holds: assets abroad are not divided here and require proceedings in the country where they are located. As to taxation in these situations, the Constitution refers the matter to a complementary law, which counsels against any general statement without examining the specific case.
How to evaluate who will conduct the probate
1. Check whether the professional read the estate before giving an opinion on the route. Anyone who answers "the notary's office is faster" without seeing the articles of association and the property records is guessing. 2. Ask how the corporate holdings will be valued and what the articles of association provide for the death of a partner. 3. Confirm that the ITCMD has been sized in every state involved, and not only in the state of domicile. 4. Ask for the timeline design: when the first declarations are filed, when the tax is paid, what depends on third parties. 5. Note whether they address what comes afterwards. Closing the partilha while leaving the same assets exposed to the next succession event is solving half the problem, the subject of estate planning.
Probate is the reactive stage of succession. The stage that leaves room for choice is the earlier one, when it is still possible to organize the ownership of assets and define governance. The fundamentals of the procedure are in probate: what it is, types and how it works.
This content is for informational purposes only and does not replace individual legal consultation. Each case has particularities that require specific analysis.
Dr. Wendel Ferreira Lopes — Attorney, OAB/MG nº 18.881. Founding partner of WF Advogados, practicing in Tax, Banking, and Estate/Succession Law since 1999. Uberlândia, Brazil.
Frequently Asked Questions
Do I need a lawyer to do probate at a notary's office?
Yes. Article 610, §2, of the Code of Civil Procedure provides that the tabelião may only draw up the deed of inventário and partilha if all interested parties are assisted by a lawyer or public defender, with credentials and signature in the notarial act. The extrajudicial route dispenses with the court proceeding, not with the lawyer.
What does a probate lawyer do in practice?
Surveys assets, debts and heirs, defines the appropriate route, conducts the appointment of the inventariante and the first declarations, assesses the ITCMD owed in each state involved and handles the corporate and registry matters through to the transfer of the assets.
Does a minor heir require judicial probate?
Not necessarily since CNJ Resolution 571/2024. The deed is allowed when the share of the minor or legally incapable person is paid as an undivided fractional interest in each of the inventoried assets and there is a favorable opinion from the Ministério Público. If there is an objection, the case goes to the competent court.
With a will, is it still necessary to go to court?
In part. The partilha may be carried out by public deed, but it depends on express authorization from the succession court in a proceeding for the opening and execution of a valid and effective will, with a final and unappealable judgment. If a provision acknowledging a child or any other irrevocable declaration is found, the deed is prohibited.
What is the deadline to open probate?
Article 611 of the Code of Civil Procedure provides for institution within two months counted from the opening of the succession, with conclusion within the following twelve months, deadlines the judge may extend. State legislation usually provides for a penalty for the late payment of the ITCMD.
Do properties in different states require more than one probate?
No. Probate is a single proceeding and runs in the court of the deceased's domicile in Brazil, under Article 48 of the Code of Civil Procedure. What is split is the tax: the ITCMD on real estate is owed to the state where the asset is located, and on movable property, securities and credits to the state where the deceased was domiciled.
What are the cost components of probate?
The ITCMD, the court costs or the notarial and registry fees, the required certificates and the asset appraisals. The weight of each varies according to the route adopted, the states involved and the composition of the estate.