Does Having a Will Avoid Probate in Brazil?

As a general rule, no. Having a will in Brazil does not eliminate the need to open probate proceedings after a person’s death. Wills and probate are closely related under Brazilian succession law. However, they serve different purposes and should not be confused. Probate proceedings identify and distribute the assets left by the deceased.

As a general rule, when the deceased leaves assets to be distributed, the heirs will need probate proceedings. Specific assets or amounts may qualify for a simplified release, including an alvará judicial, when the legal conditions are met. A will does not itself create that exception.

A will has a different purpose. It expresses the testator’s wishes about the distribution of assets after death. A will can be an important estate planning tool. Still, it does not replace or eliminate probate proceedings.

What Is a Will in Brazil?

A will is an instrument under Brazilian succession law. It records the testator’s final wishes about the distribution of assets after death. Asset-related provisions are the most common. However, a will may also include non-financial provisions, such as the recognition of a child.

Brazilian law classifies wills into ordinary and special forms. Ordinary wills include public wills, private wills, and closed wills. Special wills apply to exceptional circumstances provided by law. The required form matters, but none is a general substitute for estate administration. Our guide to making a will in Brazil explains the choices and formalities.

What Are Probate Proceedings in Brazil?

Probate, or inventário, is one of the main procedures under Brazilian succession law. Inheritance rights generally pass at death under Civil Code article 1,784. Probate identifies the estate and formalizes its distribution; it does not create every inheritance right for the first time.

During this process, the estate must identify the heirs. It must also identify the assets, rights, and obligations left by the deceased. After the relevant requirements are met, the estate can be distributed and the necessary asset records updated. During probate, an estate administrator, or inventariante, administers the estate.

The estate, or espólio, includes the assets, rights, and obligations left by the deceased. The administrator carries out the necessary acts of administration during probate. Brazilian law provides two main forms of probate: judicial probate and extrajudicial probate. The facts of each case determine which path is more appropriate.

Judicial Probate

Judicial probate takes place before a Brazilian court. Families generally use this path when there is a dispute among the heirs. It may also apply when the case does not meet the requirements for extrajudicial probate.

Extrajudicial Probate

Extrajudicial probate takes place through a notary’s office. It may take less time than judicial probate. Among other legal requirements, the interested parties generally need to agree on the probate terms.

Why Does a Will Not Avoid Probate in Brazil?

Probate proceedings remain necessary because they serve a different purpose from a will. The existence of a will does not, by itself, eliminate probate. This is especially true when the deceased leaves assets to distribute. A will expresses the testator’s wishes about the transfer of one or more assets to specific beneficiaries.

A will alone is not enough to take possession or update title records. A specific legacy may belong to its beneficiary from death under Civil Code article 1,923, subject to its conditions, but the beneficiary cannot simply take possession on their own authority.

Before a beneficiary named in a will can receive an asset, the estate must follow the appropriate succession procedure. Through probate proceedings, the estate identifies the assets and heirs. Probate also allows the will to be reviewed under Brazilian law. That review may confirm whether the will respects the inheritance rights of other heirs.

Simply put, the will indicates the deceased’s wishes. Probate proceedings formalize the distribution and supply the documents needed for registration, release or other asset-specific steps.

Can a Will Make Probate Easier?

Yes. Although a will does not avoid probate in Brazil, it remains an important instrument in succession and estate planning. When the testator prepares a will according to legal requirements, the will can help organize succession. It records the deceased’s wishes in advance. That can reduce uncertainty when the estate is distributed.

It may also reduce disputes among heirs. Still, a will does not automatically make probate simpler or faster. The heirs may still challenge the will. They may also ask whether the document complies with Brazilian law. For that reason, compliance with Brazilian law is crucial when preparing a will.

A qualified professional can help check that the will follows the required formalities. A will that does not comply with legal requirements may create more disputes than solutions.

Is Extrajudicial Probate Possible When There Is a Will?

This question often creates confusion. The Brazilian Code of Civil Procedure provides that, when there is a will, probate should proceed through the judicial system. However, Brazilian case law has recognized the possibility of extrajudicial probate when certain requirements are met.

Agreement among the heirs is not enough on its own. Current CNJ Resolution 35, article 12-B, expressly regulates consensual notarial inventories involving wills. The interested parties must have qualified legal representation, and a valid, effective will requires express authorization from the competent succession court in a final judgment in the will proceedings.

If minors or legally incapable interested parties are involved, the additional safeguards in article 12-A must also be satisfied, including protected fractional shares in each asset and a favorable Public Prosecutor’s opinion. The applicable restrictions on disposal must be respected.

A will containing acknowledgment of a child or another irrevocable declaration prevents the notarial inventory under this rule. Invalidated, revoked or otherwise ineffective wills also require the specified judicial determination; do not simply disregard the document.

If the heirs do not agree, the case will generally need judicial probate. Extrajudicial probate can make the process faster and less bureaucratic. It can also avoid a full judicial proceeding for the distribution of the estate, while preserving the required judicial steps concerning the will.

For that reason, the existence of a will should not automatically block extrajudicial probate. Each case must be evaluated individually. That review will determine the most appropriate procedure. See the probate-process guide for the full route assessment.

What Are the Limits of a Will in Brazil?

A will must respect the applicable succession law. In an international estate, Brazilian asset location alone does not answer every applicable-law question. Where Brazilian forced-heirship rules apply, the protected share (legítima) must be respected, with the correct calculation of the net estate and relevant lifetime gifts.

As long as the legítima is respected, the testator may decide how to distribute the disposable portion. If the testator has no forced heirs, the testator generally has greater freedom. In that case, the testator may dispose of the entire estate in favor of a chosen person or institution.

For family status, surviving-partner rights and the distinction between marital property and inheritance, see our forced-heirship guide.

When Should You Consider Making a Will in Brazil?

A will can be important when someone wants to organize succession in advance. It can also help when the person’s assets or family circumstances require more planning. A will may be useful when there are children from different relationships. It may also help when there are family businesses.

Another common situation involves a specific asset that the testator wants to leave to a particular person after death. The decision depends on the person’s family structure, assets, and succession wishes.

International Situations

Estate planning may be especially relevant in international estate planning situations. This includes foreign nationals who own assets in Brazil. It also includes Brazilians who live abroad. A will may also help Brazilians who want to leave a specific asset to a family member or another person living outside Brazil.

A foreign will or foreign probate order does not automatically complete the Brazilian procedure. Coordinate its form, effect, translations and any necessary local judicial steps. Our foreign-will recognition guide addresses that separate issue.

Broader Succession Planning

The decision to make a will should consider each person’s individual circumstances. It can form part of a broader estate and succession plan. That plan should reflect the person’s family structure and financial circumstances.

Does a will remove tax or filing deadlines?

No automatic tax exemption follows from making a will. The estate may still have ITCMD, filing obligations and third-party costs. Use our tax and fees guide for those questions. Do not assume that finding or validating a will suspends every deadline. Check the applicable probate, tax and claim periods promptly; our inheritance-deadlines guide distinguishes them.

How Oliveira Lawyers Can Help

Oliveira Lawyers assists Brazilian and foreign clients with estate and succession planning, wills, and probate proceedings in Brazil. Before preparing a will or beginning probate proceedings in Brazil, the family should evaluate the case carefully.

If you need assistance with a will, estate planning, or probate proceedings in Brazil, contact Oliveira Lawyers for a case review.

Legal references

Civil Code, articles 1,784, 1,845–1,847, 1,857 and 1,923; Code of Civil Procedure, articles 610 and 735–737; and CNJ Resolution 35, articles 12-A and 12-B.