Inheritance and inventário in Brazil: notary or court

Who inherits

Under Civil Code article 1.829, the order is: descendants, together with the surviving spouse (except for spouses married under universal community of property or mandatory separation, or in partial community when the deceased left no separate assets); then ascendants with the spouse; then the spouse; then collateral relatives. The descendants, ascendants and spouse are necessary heirs (article 1.845), and half of the estate belongs to them by right as the legítima (article 1.846). With necessary heirs, a will may dispose of only the other half (article 1.789). The surviving spouse also has a right to live in the family home, whatever the marital property regime, if it is the only property of that kind in the estate (article 1.831). A foreigner with Brazilian property needs to know that this protected half is a rule of Brazilian civil law; see inheriting Brazilian property from abroad.

Court or notary

The Code of Civil Procedure, article 610, says that where there is a will or an incapable heir, a judicial inventory applies; if all are capable and agree, it can be done by public deed, which is a valid title for registration and for withdrawing money from banks, and the notary will only draw it up if every party is assisted by a lawyer or public defender (paragraphs 1 and 2). The CNJ Resolution 35/2007, as amended, widens this:

• Article 12-A (Resolution 571 of 26 August 2024): the notarial route is possible even with a minor or incapable heir, if that heir’s share is paid as an ideal part in each asset, and the public prosecutor (Ministério Público) gives a favourable opinion.
• Article 12-B (same resolution): it is possible even where the deceased left a will, if all interested parties are represented by a lawyer, are adults and agree, and the probate court has expressly authorised it in a final decision opening and giving effect to the will.
• Article 2: parties may choose between the judicial and extrajudicial routes, and may suspend a judicial case for 30 days to move to a notary.
• Article 1: you may choose any notary in the country; the court-jurisdiction rules do not apply.
• Article 29: a public inventory deed cannot cover assets located abroad.
• Article 31: the deed can be drawn at any time, with the notary checking any tax penalty under state law.

The CNJ resolution is an administrative rule, and the statute (article 610) still speaks of a judicial inventory in these cases; the resolution is what notaries apply, but a lawyer should confirm that the notary of your choice accepts the case.

What the notary asks for

Resolution 35, article 22: the death certificate; official ID and CPF of the parties and the deceased; proof of family relationship; marriage certificates and pre-nuptial agreement; the property record certificates for real estate and proof of ownership of movables; the tax clearance certificate; and, for rural land, the CCIR. Spouses of heirs must attend if the partition involves a renunciation or a transfer, except under complete separation of property (article 17). A single heir receives the estate by “adjudication” (article 26). See CPF for foreigners, which a foreign heir needs before signing.

Taxes in the inventory

• ITCMD. Since Resolution 695 of 26 August 2026, the deed “is not conditioned on proof of prior payment of the ITCMD”; the notary records the parties’ declaration on how the tax is calculated and paid under state law, and if it has not been paid first, informs the tax authority within 5 days (Resolution 35, article 15). The tax is still due; see ITCMD.
• Income tax. The estate (espólio) files a final return. Assets can be transferred to heirs at the value in the deceased’s last return (no capital gain), or at a higher value, taxed at 15 percent on the difference, paid by the executor (inventariante) by the filing date of the final return (Receita Federal Q&A 609, 612). The heir records the asset at the transmission value, with the date of death as the acquisition date; see capital gains tax.
• Court route. In a simplified court partition, questions about taxes on the transmission are not decided in the case (Code of Civil Procedure, article 662); the tax authority is informed to assess it.

Timing

Article 611: the inventory must be started within 2 months of the opening of the succession and finished in the following 12 months, which the judge may extend. State tax laws add penalties for delay; São Paulo, for example, expects payment within 180 days of death (see the ITCMD guide). A notarial deed has no deadline of its own (Resolution 35, article 31) but state tax penalties may apply.

Which professional to consult

A lawyer registered with the OAB is compulsory in the notarial route (see the property lawyer page). An accountant prepares the estate’s tax return. If the heirs live abroad, the lawyer can arrange representation under a power of attorney; see power of attorney from abroad.