Probate stuck in Brazil: how to unlock it

Updated on November 8, 2026.

Probate in Brazil often starts with the family in agreement and ends years later, with property sitting idle, bank accounts frozen and heirs worn out. In most cases the delay has a known cause: tax without a payment plan, documents nobody arranged, an heir who will not sign, or a court procedure slower than the case required. Almost all of this can be tackled in the first 60 days.

In our firm’s practice, the first step is to file the ITCD inheritance tax return right at the start, even before deciding whether probate will go to a notary office or to court. Below we explain why and show the other tools the law offers to unlock the division of the estate.

The deadline the law sets

Brazil’s Code of Civil Procedure requires probate to be opened within 2 months of the death and concluded within the following 12 months, with the possibility of extension by the judge (art. 611). In real life this deadline is rarely met, but delay has a cost.

In the state of Goiás, the ITCD Return must be filed with the State Department of Economy within 60 days of the death (Normative Instruction 1.564/2023-GSE, art. 3). The State Tax Code provides for a fine of 10% of the tax when filing is more than 60 days late and 20% when it is more than 120 days late (art. 89, items I and I-A). Each state has its own deadline and fine rules, so property located outside Goiás requires checking local law.

Why probate drags on

Heirs who disagree. It only takes one heir disagreeing with the division, the value of the assets or who manages the estate for the notary route to be ruled out. We cover this scenario in an heir blocking probate.
Tax without a plan. The family finds out the ITCD amount late, has no cash in the account and the estate only has real estate.
Irregular documents and property. Property without a registry record or bought under an unregistered private contract, unrecorded construction, a vehicle with debts, a company with an outdated articles of association.
An heir who is a minor, legally incapable, abroad or whose whereabouts are unknown. Each situation adds steps, such as an opinion from the Public Prosecutor’s Office or service by public notice.
A will. For a long time it sent the case to court. Today there is an alternative at the notary office, explained below.
Taxes and debts of the estate. Property tax (IPTU and ITR), vehicle tax (IPVA), the deceased’s income tax and bank debts must be identified and settled before the division.
Gifts made during the deceased’s lifetime. A child who received property or money from the parents must bring that value into probate to equalize the forced shares (Civil Code, art. 2.002). The dispute over what was given and how much it was worth is one of the biggest causes of delay.
Uncontrolled rents. One heir collects the rents alone, the others become suspicious and the conflict spreads to the rest of the probate. This point has its own solution, explained further below.
An idle executor. The person managing the estate does not file the statements, does not submit documents and does not account for the estate.
A slower procedure than necessary. A family in agreement that files ordinary probate when a notarial deed or summary probate would have been possible.

File the ITCD return right at the start

Filing the tax return does not depend on probate being open. In Goiás it is done in the ITCD Web System, which calculates the tax and issues the payment slip. Bringing this step forward has four concrete advantages.

1. The filing date sets the value of the assets

In Goiás, the ITCD tax base is the market value of the asset on the filing date (State Tax Code, art. 77), and the return must state the market value on the date it is submitted (IN 1.564/2023, art. 4). The later the family files, the greater the chance the property has appreciated and the tax has gone up.

Filing early does not allow undervaluation. If the stated value is below market, the tax authority assesses the difference, with the right of defense in the administrative proceeding (art. 84-B), and may impose a fine of 75% on the difference found in a tax audit (art. 89, II-A, item b).

2. It avoids the late-filing fine

Filed on time, the return avoids the 10% and 20% fines provided for in art. 89 of the State Tax Code.

3. No return, no deed

Since CNJ Resolution 695/2026, the notary office may draw up the probate deed without proof of prior payment of the ITCMD. In Goiás, however, the State Department of Economy instructs the notary to state in the deed the ITCD Return, which the taxpayer must have filed beforehand, and to report the act to the tax authority within 5 days through the ITCD Web System. Those who filed at the start reach the notary office with this step already done.

4. Disputes over values run in parallel

If the tax authority disagrees with the values, the administrative dispute begins while the other documents are being gathered, not after everything is ready.

Watch the payment deadline. Under IN 1.564/2023 (art. 21), the ITCD slip is due 30 days after the return is filed; after that, interest and late-payment fines apply. That is why an early return must come with a payment plan. When the estate does not have enough cash, securities or tradable shares to pay the tax, Goiás law allows payment in up to 48 monthly or 8 semiannual installments (State Tax Code, art. 84, § 3, II). An installment plan backed by a real guarantee does not prevent the probate deed from being drawn up (art. 84, § 4), and in court proceedings proof that the installment plan was granted replaces proof of payment before the judgment (art. 88-A).

For each urban property, the return requires the address, land and built area, registry number and a georeferenced photo with coordinates, date and time. For rural property, the municipality, area in hectares, registry number and a georeferenced photo of the improvements (IN 1.564/2023, art. 4). Gathering this material in the first week already moves much of the probate forward.

Choose the shortest path

Probate at a notary office

When all heirs are legally capable and in agreement, probate can be done by public deed, which is valid for the real estate registry and for withdrawing funds from banks (CPC, art. 610, § 1). A lawyer’s participation is mandatory (art. 610, § 2).

CNJ Resolution 571/2024 expanded this route:

Minor or incapable heir: the deed is possible if the minor receives an undivided share in each asset and the Public Prosecutor’s Office agrees. Acts disposing of the minor’s assets remain prohibited, and if there is an objection, the case goes to a judge.
Will: the deed depends on express authorization from the probate court. If the will acknowledges a child or contains another irrevocable declaration, probate must go through the courts.
Sale of an asset to pay expenses: the deed may authorize the executor to sell movable and real property without court authorization, as long as it itemizes the expenses, including transfer taxes and notary fees, ties the price to them and provides a guarantee. The expenses must be paid within 1 year of the sale.
Executor appointed by deed: may represent the estate in obtaining bank and tax information and in withdrawing funds to pay probate expenses.

CNJ Resolution 695/2026 removed the requirement of paying the ITCMD before the deed. The tax is still owed, and the real estate registry may still require proof of payment to transfer the property record to the heirs. We detail this point in notarial probate without paying the ITCMD first.

The deed can also be signed remotely, by video call, through the e-Notariado platform, provided for in Provision 100/2020 of the National Justice Inspectorate. This solves the case of an heir who lives in another city or abroad. See probate with an heir abroad.

Summary probate in court

When there is agreement but the notary office is not possible or not advisable, summary probate (arrolamento sumário) is the fastest court procedure. An amicable division among capable parties is approved outright by the judge (CPC, art. 659), and the proceeding does not discuss the assessment or payment of the transfer tax, which is left to the administrative sphere (art. 662).

The STJ established in Theme 1.074 that, in summary probate, approval of the division and issuance of the formal share document do not depend on prior payment of the ITCMD, but do require proof of payment of taxes on the estate’s assets and income. In April 2025, the STF confirmed the validity of art. 659, § 2, of the CPC in deciding ADI 5.894.

For estates of up to 1,000 minimum wages there is also ordinary summary probate (art. 664), which can be used even with an incapable heir if all parties and the Public Prosecutor’s Office agree (art. 665).

Ordinary court probate

This is for cases of conflict. Even here there are measures that shorten the path, described below.

Tools to unlock probate

Assignment of inheritance rights

An heir who wants to leave the probate can assign their share by public deed (Civil Code, art. 1.793), to the other heirs or to a third party. Assigning a specific asset on its own is ineffective, and co-heirs have a right of first refusal when the assignment is made to someone outside the succession (art. 1.794). The assignment may trigger its own tax, which should be calculated before signing.

Renunciation

An heir who does not want the inheritance renounces it by public deed or court record (Civil Code, art. 1.806). Renunciation cannot be partial or conditional (art. 1.808). Anyone who wants to direct their share to a specific person needs another instrument, with different tax treatment.

Dividing what is ready and supplementary division

Litigious assets, assets that are difficult or slow to liquidate and assets located far away can be set aside for supplementary division (sobrepartilha), while the rest is divided (Civil Code, art. 2.021; CPC, art. 669). An irregular property or a pending lawsuit no longer holds up the entire inheritance.

Selling an asset to pay the tax

In court, the executor may sell estate assets with the judge’s authorization, after hearing the interested parties (CPC, art. 619, I). At the notary office, the CNJ Resolution 571/2024 rule described above applies.

Early use of an asset

The judge may allow an heir to use and exploit a given asset before probate ends, as long as that asset goes to them in the division and they take on its burdens and benefits from then on (CPC, art. 647, sole paragraph). This helps when one of the children already lives in the house or when a farm cannot stop operating.

Small amounts without probate

Payment of the amounts provided for in Law 6.858/1980, such as FGTS and PIS-Pasep balances, does not depend on probate (CPC, art. 666).

Replacing the executor

An executor who does not file the statements on time, does not move the case forward properly, engages in delaying tactics, lets assets deteriorate or does not account for the estate may be removed by the court on its own initiative or at the request of any interested party (CPC, art. 622).

Disputes that depend on evidence go to a separate lawsuit

The probate judge decides questions of law and those proven by documents. Those that depend on other evidence, such as witnesses or expert examination, are referred to ordinary proceedings (CPC, art. 612). A contested claim of stable union or of a sham gift does not need to stop the division of the other assets, which can proceed with the disputed share set aside.

Creditors of the estate

The inheritance is liable for the deceased’s debts until the division; after it, each heir is liable in proportion to what they received (Civil Code, art. 1.997). A creditor with written proof may request payment within the probate itself, and if the parties agree, the judge sets aside sufficient money or assets (CPC, art. 642). Settling the debt early, by agreement or by setting assets aside, avoids seizure of property already divided.

Joint probate proceedings

When both spouses or partners have died, or when the heirs are the same people, the probate proceedings can be joined into one (CPC, art. 672).

Estate rents: who receives them before the division

A rented property keeps generating income after the owner’s death, and that income is often the first source of conflict among heirs. The law gives a clear answer: until the division, the inheritance is indivisible and follows the rules of co-ownership (Civil Code, art. 1.791, sole paragraph), and the fruits of the common property are divided in proportion to the shares (art. 1.326). Each heir is entitled to their share of the rents from the opening of the succession, not only after the division.

The estate is managed by the executor, who must care for the assets as if they were their own and account for them whenever the judge orders (CPC, art. 618, II and VII). The heir, surviving spouse or executor who received rents must bring them into the estate, with the right to reimbursement of necessary and useful expenses paid (Civil Code, art. 2.020). An heir who lives alone in the property or collects the income without passing it on is liable to the others for the fruits (art. 1.319).

Court deposit and withdrawal of each person’s share

In court probate, when there is distrust or conflict, the usual path is to ask the tenant or the executor to deposit the rents into a court account linked to the case. The money is protected, accounting becomes simple and no heir needs to trust the other.

The deposit does not force the family to wait until the end of probate to see the income. Heirs may ask the judge for periodic withdrawal of each person’s share, in proportion to their share, after setting aside what is needed for estate expenses: property tax, condominium fees, maintenance, the estate’s income tax and debts. The judge decides case by case, and the request tends to be granted more easily when everyone agrees and the accounts are up to date. If there is a minor or incapable heir, the Public Prosecutor’s Office is heard.

Three precautions come up often in these requests:

The spouse’s half. The half that belongs to the surviving spouse or partner is not part of the inheritance. Depending on the property regime, they may request release of their half of the rents, and the other half follows the heirs’ rule.
ITCD in Goiás. The State Tax Code requires the ITCD to be paid before funds are withdrawn by court order (art. 84, § 2, VI). That is why the judge may require the tax slip, or proof of the installment plan, before releasing the money to the heirs.
Income tax. Rents received after the death go into the estate’s tax return. In summary probate, approval of the division requires proof of payment of taxes on the estate’s assets and income (STJ Theme 1.074), and rent without declared tax becomes an obstacle at the end of the process.

In notarial probate, with all heirs capable and in agreement, the income can be divided by written agreement, with the executor appointed by deed accounting to the others. Amounts received and tax paid must be stated in the division.

For those who want to keep the property before the division, the judge may grant early use and enjoyment to one of the heirs, who then receives the income and bears the costs, as long as the asset is part of their share at the end (CPC, art. 647, sole paragraph).

Roadmap for the first 60 days

Death certificate, heirs’ documents and marriage certificate or proof of stable union, with the property regime.
Checking whether there is a will.
List of assets: updated property records, property tax slips, vehicle documents, bank and investment statements, company articles of association.
Survey of the deceased’s and the assets’ debts and pending taxes.
Georeferenced photos of the properties and filing of the ITCD Return.
Lease contracts, amounts received since the death and a decision on who receives the rents, with a court deposit if there is conflict.
Choice of path (notary office, summary probate or ordinary probate) and of the executor.
Tax payment plan: estate cash, sale of an asset or installments.

The site’s probate calculator gives an initial estimate of tax and costs.

So the next probate does not get stuck

Many of the problems described here can be avoided while the asset owner is alive. Wills, gifts with a reserved usufruct, family holding companies and private pension plans are instruments with their own rules and costs, and the choice depends on the estate, the family and the state’s tax. None of them fits every case, and some changed with Complementary Law 227/2026.

To learn more, see estate and succession planning, wills, family holding feasibility meeting and PGBL and VGBL in an inheritance.

Frequently asked questions

Is there a fine for opening probate late?

The CPC sets a 2-month deadline to open probate (art. 611). In Goiás, the tax fine is tied to late filing of the ITCD Return: 10% of the tax when the delay exceeds 60 days and 20% when it exceeds 120 days (State Tax Code, art. 89). Other states have different rules.

How long does probate take?

There is no guaranteed timeframe. With heirs in agreement, documents in order and tax resolved, a notarial deed is usually the fastest path. Conflict, irregular property and an heir whose whereabouts are unknown lengthen any procedure.

Do I need to pay the ITCD before the deed?

Since CNJ Resolution 695/2026, the deed does not depend on prior payment. In Goiás, the ITCD Return must have been filed, and the notary reports the deed to the tax authority. The tax is still owed, with interest and fines if late, and the real estate registry may require proof of payment.

Can heirs receive rents before the division?

Yes. Each heir is entitled to their share of the income from the death (Civil Code, arts. 1.791 and 1.326). If there is conflict, the rents are deposited into a court account, and heirs may ask the judge for periodic withdrawal of each person’s share, after estate expenses are set aside. In Goiás, the judge may require the ITCD to be paid or under an installment plan before releasing the funds.

Can it be done at a notary office with a minor child?

Yes, since CNJ Resolution 571/2024, if the minor receives an undivided share in each asset, the Public Prosecutor’s Office agrees and there is no disposal of assets belonging to the minor.

An heir will not sign. What can be done?

Probate proceeds in court, and there are measures to prevent one heir from blocking the process. See an heir blocking probate.

Each probate depends on the family’s documents, the assets and the state where they are located. For an analysis of your case, see our probate page or talk to the team on WhatsApp (62) 98184-3257 or (61) 99833-1103. See also estate and succession planning.

Official sources

By Sidnei Pedro Dias, lawyer, OAB/GO 48.603, OAB/DF 68.207 and OAB/SP 501.693.

Probate stuck in Brazil: why it drags on and how to unlock it