What is the deadline for opening probate?
Probate must be opened within two months of the death. After that, the state applies a penalty on the inheritance tax, and the delay also makes it harder to obtain documents and deal with the assets. Even once the deadline has passed, probate can and should still be carried out.
What is the difference between judicial and out-of-court probate?
Out-of-court probate is done before a notary, by public deed, and is considerably faster. The central requirement is that all the heirs agree on the division. The rule on those lacking capacity has changed: since Resolution 571/2024 of the National Justice Council, notarial probate is permitted even where there is a minor heir or one lacking capacity, with a favourable opinion from the public prosecution service. The judicial route remains the path where the heirs disagree.
Do I need a lawyer to go through probate?
Yes, on both routes. The law requires a lawyer both in judicial probate and in the notarial deed, and a single professional can represent all the heirs where they agree.
How much does probate cost?
The cost depends on the value and type of the estate, the route chosen and the state where probate takes place. The three main components are the inheritance tax, the notary or court fees, and professional fees. We produce that estimate before starting, so the family can decide with the figure in hand.
What happens if probate is never carried out?
The assets stay in the deceased's name and remain frozen: the property cannot be sold, the vehicle cannot be transferred, and accounts and investments cannot be touched. The tax penalty keeps accruing and, over time, further deaths in the family make the division more complex and more expensive.
One heir refuses to sign. Does probate come to a halt?
No. A refusal only rules out the out-of-court route. Probate then proceeds in court, where the judge decides on the division, and any heir or the spouse can start the process without needing the others' agreement.
There is a will. Can probate still be done before a notary?
In many cases, yes. The existence of a will is no longer an absolute bar: once the will has been judicially executed, the division of the estate can proceed out of court. Some clauses, however, still require the judicial route, such as recognition of a child and fideicommissary substitution. It is an analysis carried out on the wording of the will.
Can a property be sold before probate is finished?
It depends. While probate is under way the property is still in the deceased's name, but there are two routes. The first is a court order authorising the sale of a specific asset, used where there is a proven need, such as funding treatment or settling an estate debt. The second is an assignment of inheritance rights, whereby the heir transfers their share in the estate. Each has its own effects and risks for buyer and seller.
I am widowed. Do I have to leave the home I live in?
No. The surviving spouse or partner has a right of residence over the property that served as the family home, provided it is the only property of that kind in the estate. That right is for life and is independent of the share the survivor receives in the division, meaning they continue living in the property even if ownership is split among the heirs.
Do we need to come to the office in person?
No. The service can be provided entirely remotely, allowing the documents to be reviewed and the case followed with security, speed and discretion.
If you prefer to meet in person, Doering Darcie Advocacia e Consultoria has offices in Porto Alegre and São Paulo for meetings by prior appointment.
