Deadline to open the inventário: the 60 days, the ITCMD penalty and what delay costs
Quick answer: the deadline to open the inventário (the Brazilian proceeding that settles and distributes a decedent's estate) is two months counted from the date of death, under article 611 of the Code of Civil Procedure. Missing the deadline does not invalidate the estate settlement and does not strip any heir of their rights, but it triggers the tax cost: state ITCMD legislation (the Brazilian state tax on gratuitous transfers by death or gift) penalizes delay, and in a sizable estate the penalty becomes a five- to six-figure sum.
A business owner dies in February. He leaves two operating companies, an interest in a holding company, three urban properties, a leased farm and an investment portfolio. The family, understandably, does not want to discuss paperwork in the month after the funeral. In September someone comes to the firm because the bank froze the company's account and the lessee stopped paying, not knowing whom to pay. At that point the deadline of article 611 expired five months ago.
Delay almost never comes from carelessness. It comes from grief, from disagreement among heirs, or from the assumption that there is no hurry. The problem is that procedural law and tax law count different deadlines, and only one of them charges money for being late.
The deadline of article 611 of the CPC: two months to open, twelve to conclude
Article 611 of the Code of Civil Procedure (Law 13,105/2015) provides that the inventário and partition proceeding must be opened within two months counted from the opening of the succession, and concluded within the following twelve months, with the judge allowed to extend those periods, on his own initiative or at a party's request. The opening of the succession is the date of death, not the date on which the family organized itself to deal with the matter.
In procedural terms this is a prazo impróprio (a time limit whose breach carries no procedural sanction): failing to meet it creates no nullity and extinguishes no heir's right. The sanction lies in each state's tax legislation, a competence the Supreme Federal Court settled in Súmula 542 (a consolidated statement of the Court's case law): a penalty instituted by a member State as a sanction for delay in starting or in concluding the inventário is not unconstitutional.
The deadline that costs money is the ITCMD one
The deadline whose loss generates a penalty is not necessarily the one for filing the inventário. In some states it is the deadline to request it; in others, the deadline to pay the tax. Since the firm operates out of Uberlândia and Ribeirão Preto, we address here the two bodies of legislation we most often receive.
Minas Gerais: the count that matters is the payment one
Minas Gerais once had a specific penalty for those who failed to request the inventário in time. Article 27 of state Law 14,941/2003 provided for that surcharge and was repealed by state Law 17,272, of 2007. There is today, under Minas law, no standalone penalty for the mere fact that the inventário has not been filed.
Delay, even so, is not free. Article 13, item I, of the same law requires the causa mortis ITCD to be paid within one hundred and eighty days counted from the opening of the succession. Once that period expires, the penalty of article 22 applies over the tax due, reaching 12% after the sixtieth day of delay, and rising to a 50% revalidation penalty where there is a tax audit. Because the Minas rate is a single one, 5% (article 10), the amount grows in proportion to the estate. To size up the tax in your case, use the ITCMD calculator for Minas Gerais.
São Paulo: the penalty is tied to the act of requesting
São Paulo law chose the opposite path. Article 21, item I, of state Law 10,705/2000 provides that, where the inventário and the arrolamento (the simplified estate procedure) are not requested within sixty days of the opening of the succession, the tax is calculated with a penalty surcharge of 10%; if the delay exceeds one hundred and eighty days, the penalty is 20%. The São Paulo rate is 4% (article 16, as worded by Law 10,992/2001).
| Aspect | Minas Gerais (Law 14,941/2003) | São Paulo (Law 10,705/2000) |
|---|---|---|
| Penalty for not requesting the inventário | None: art. 27 repealed by Law 17,272/2007 | 10% if not requested within 60 days; 20% if the delay exceeds 180 days (art. 21, I) |
| Deadline to pay the tax | 180 days from the opening of the succession (art. 13, I) | 30 days after approval of the calculation, capped at 180 days from the opening (art. 17) |
| Penalty for late payment | 0.15% per day up to the 30th day; 9% from the 31st to the 60th; 12% after the 60th; 50% revalidation penalty where there is a tax audit (art. 22) | Surcharges and interest as provided in state legislation |
| Rate in force | 5% (art. 10) | 4% (art. 16) |
What delay costs in a seven-figure estate
Take an illustrative, hypothetical example with no correspondence to an actual case: an estate in Minas with a tax base assessed at R$ 4 million, between real property and quotas in a limited liability company. The tax under the rule in force comes to around R$ 200,000, and the 12% penalty applicable after the sixtieth day of delay represents about R$ 24,000. In São Paulo, an estate of R$ 6 million would generate tax of close to R$ 240,000, and the 20% penalty of article 21 approaches R$ 48,000. The penalty is a percentage, so it tracks the size of the estate, and the cost does not stop at the tax: court costs or notary fees, certificates, appraisal of real property and of corporate interests, and pending regularizations all come in.
The silent cost is usually the largest. While the estate remains unsettled, the heir does not sell, does not pledge as collateral, does not contribute assets to a holding company, and the exercise of voting rights attached to the decedent's quotas sits in a grey zone within the family business. It is that lock-up, not the penalty, that usually prompts the phone call. On how the proceeding is conducted, it is worth reading what an inventário lawyer does.
When the penalty has already been assessed
Súmula 114 of the Supreme Federal Court states that the causa mortis transfer tax is not enforceable before approval of the calculation, and from that it is argued that there is no default while the tax base is not defined. The argument reaches state courts with regularity, including in extrajudicial (notarial) inventários, where the discussion is which act marks the start of the procedure for counting purposes: the deed appointing the inventariante (the estate administrator) or the deed of partition. The outcome depends on state legislation, on the route chosen and on the documentation, and there is no guarantee of success. The most common mistake we see, however, is the opposite of what one imagines: it is not the taxpayer who argues too much, it is the one who pays everything automatically, penalty included, without anyone having checked the starting date adopted by the Fisco (the state tax authority) or the valuation attributed to the assets.
Deadline missed: where to start
1. Gather the documentation. Death certificate, heirs' documents, marriage certificate with the annotation of the marital property regime, and proof of ownership of each asset. 2. Check whether there is a will in the notarial central databases: that search defines which route is available. 3. Take stock of the actual body of assets, liabilities included: financings, avais (sureties given on debt instruments) and the individual's tax debts. 4. Choose the route. The CPC requires a judicial inventário where there is a will or an incapable interested party, but Resolução CNJ 571, of 26 August 2024, amended Resolução CNJ 35/2007 to allow a public deed in both situations, subject to requirements. The procedures are set out in inventário: what it is, types and how it works. 5. Assess the tax with a technical valuation. The base is market value, and the valuation of quotas and of rural properties is where most is gained or lost. On who bears the charge, see who pays the ITCMD in the inventário. 6. Check the surcharges before paying: the starting date adopted, the rate and any state exemption.
The prevention that spares the rush
Every problem described above is born of a decision that was not taken during lifetime. Those who organize the succession beforehand move the discussion to a moment when there is time and calm, and not sixty days after a burial. The instruments combine: the family holding company, the donation of quotas with reservation of usufruct, the will as a coordinating instrument, the shareholders' agreement that defines the governance of the company after the founder's death, and the provision of liquidity for the tax, bearing in mind that life insurance capital is not considered inheritance for any legal purpose (article 794 of the Civil Code). The alternatives are set out in succession planning.
For families with a company, multi-asset holdings and a second generation already grown, this is the scope of WF Advogados' POPP 65+ program: structuring the transfer in advance and reducing the future inventário to an act of formalization.
Informational content; it does not replace individual legal advice. Each case has particularities that require specific analysis.
Dr. Wendel Ferreira Lopes — Attorney, OAB/MG nº 18.881. Founding partner of WF Advogados, practising in Tax, Banking and Estate/Succession Law since 1999. Uberlândia/MG.
Frequently Asked Questions
What is the deadline to open the inventário?
Two months counted from the opening of the succession, that is, from the date of death (article 611 of the CPC). The same article provides for conclusion within the following twelve months and allows the judge to extend both periods.
What happens if the inventário is opened after the deadline?
It remains possible and no heir loses any right. The effect is a tax one: state ITCMD legislation penalizes delay, a competence recognized by the Supreme Federal Court in Súmula 542.
What is the penalty for delay in the inventário in Minas Gerais?
Minas has no standalone penalty for failing to request the inventário: article 27 of Law 14,941/2003 was repealed by Law 17,272/2007. The cost comes from late payment, due within one hundred and eighty days of the opening of the succession (article 13, I). Once that period expires, article 22 provides for 0.15% per day up to the thirtieth day, 9% from the thirty-first to the sixtieth, and 12% thereafter.
And in São Paulo, what is the penalty?
Article 21, item I, of Law 10,705/2000 sets a surcharge of 10% where the inventário or arrolamento is not requested within sixty days of the opening of the succession, and of 20% where the delay exceeds one hundred and eighty days.
Does the penalty fall on the inheritance or on the tax?
On the tax due. In an estate with a base of R$ 4 million in Minas, the 5% tax would come to around R$ 200,000, and it is on that amount that the percentages apply.
Can a penalty that has already been assessed be challenged?
The assessment can be examined. Súmula 114 of the Supreme Federal Court states that the causa mortis transfer tax is not enforceable before approval of the calculation, and from that comes the argument that there is no default before the base is defined. Viability depends on state legislation, on the route adopted and on the documentation.
With a minor heir or a will, is a judicial inventário still mandatory?
Not necessarily. Resolução CNJ 571, of 26 August 2024, amended Resolução CNJ 35/2007 and allowed a public deed in those situations, subject to conditions: where there is a minor or incapable interested party, the quinhão (heir's share) or the meação (the spouse's half of the marital estate) must be paid as an ideal fraction of each asset in the estate, with a favourable manifestation from the Ministério Público (the public prosecution service); where there is a will, all parties must be legally capable and in agreement, represented by a lawyer, with a final and unappealable judicial authorization.