Losing a loved one is one of the most difficult and sensitive moments a family can face. In addition to grief, relatives often need to handle legal obligations, funeral expenses, and questions about the assets left by the deceased.
This article focuses on mistakes families can avoid and the practical response to each one. For the full six-stage procedure, see how probate works in Brazil.
Before the checklist: identify the procedure
During probate, the parties identify the heirs, assets, rights, debts, and obligations left by the deceased. At the end of the process, the inheritance can be formally distributed. Inheritance rights generally pass at death; probate formalizes the distribution and asset-specific steps.
Brazilian law provides two main probate routes: judicial probate and extrajudicial probate. The facts determine eligibility. A will, minor or legally incapable interested person requires a qualified assessment, rather than an automatic route decision. Our process guide explains the conditions and stages.
Mistake #1: Waiting Too Long to Start Probate
Each person experiences grief in their own way. There is no deadline for grief, and there should not be. However, after a person passes away, certain legal obligations arise.
CPC article 611 states that the inventory and partition proceeding should be opened within two months from the opening of succession, normally the date of death. That is not a universal 60-day tax deadline; the statute also allows judicial extension. Starting promptly helps the family:
- Identify the separate tax deadlines and potential penalties
- Protect the estate
- Keep assets under proper administration
- Prevent informal transfers before the legal requirements are met
Starting probate earlier can also make it easier to gather documents, identify assets and understand what the deceased person left behind. Missing the opening period does not by itself prevent the family from opening probate later, even if years have passed. However, delay can create consequences, and separate inheritance claims may be time-barred.
ITCMD filing and payment clocks depend on the relevant state rules. Penalties, interest, exemptions and the event that triggers a deadline must be checked for the actual case. Do not assume that the federal probate-opening period determines every tax charge.
ITCMD is a state tax charged when assets are transferred by inheritance or donation. It may apply in both judicial and extrajudicial probate, although exceptions may exist depending on the case. Delay can also increase the risk of:
- Asset deterioration
- Loss of information
- Family disagreement
- Problems involving other estates
For example, if one heir dies before the first probate process is completed, the lack of action may delay the distribution of assets in another estate. For these reasons, even when Brazilian law allows probate to start after the legal deadline, beginning the process as soon as possible is usually the safest path.
What to do: record the death date, known assets and any notices; ask counsel to identify the applicable clocks. Our deadlines guide separates them, while the tax and fees guide covers tax costs.
The current CNJ rule does not make prior ITCMD payment a condition for the notarial inventory deed. It does not waive tax obligations or state deadlines. Waiting for a tax issue to be resolved is not a reason to ignore every other necessary step.
Mistake #2: Treating Estate Assets as Freely Available
Families sometimes believe that, because everyone has a good relationship, they can divide assets informally and complete probate later. This can create serious problems. Brazilian law recognizes the principle of saisine. In general terms, this means that inheritance transfers to the heirs at the moment of death.
However, inheritance rights are not unrestricted authority over each asset. Until partition, the inheritance is generally held as an undivided whole. A family agreement does not automatically authorize one heir to sell a particular property, withdraw a balance or treat the estate as their personal account.
After death, the succession opens and the deceased person’s assets become part of the estate, known in Brazil as the espólio. These assets remain subject to legal administration. This structure exists to protect the rights of all heirs and interested parties.
Authorized transactions may be possible before final distribution. In judicial probate, the administrator’s sale of assets requires the applicable court authorization and hearing of interested parties. Eligible notarial procedures also have specific mechanisms for necessary inventory expenses and, under detailed safeguards, an estate-asset sale to fund those expenses.
These routes do not provide unrestricted permission to sell or withdraw freely. Counsel must check the representative’s powers, the asset, the purpose and the conditions before an instruction is given to a bank, purchaser or registry. Agreement among the heirs does not eliminate the need for probate. However, it may make the process easier.
When all parties agree, the family may qualify for extrajudicial probate or an appropriate simplified judicial procedure, if the other requirements are met. Disputes and lack of agreement are among the main reasons probate cases can remain pending for years.
Probate is not just a formality. Before making any decision involving estate assets, families should seek legal guidance to understand the correct procedure and avoid legal risks.
What to do: confirm authority before any sale, withdrawal, assignment or distribution, and keep records of estate receipts and expenses. See the deceased bank-account guide for the distinction between limited authorized access and an heir’s final entitlement.
Mistake #3: Poor Document Organization
In general, the family may need documents related to the deceased person, the heirs, and the estate assets. These may include:
- death certificate;
- personal documents of the deceased;
- civil status documents of the heirs;
- real estate records;
- vehicle registration certificates;
- contracts;
- corporate documents;
- bank information;
- documents related to debts or obligations;
- powers of attorney, when applicable.
When heirs were born abroad or live outside Brazil, additional steps may be necessary. Foreign documents may need an apostille or another applicable legalization route, plus an accepted Portuguese translation. Treaty exceptions and the receiving authority’s requirements matter; do not assume every document needs every step.
The earlier the family organizes the documentation, the easier it is to identify missing items and solve issues before they become obstacles.
What to do: use one list showing each document, its issuer, status and any required authentication or translation. Our probate document checklist provides the fuller starting point. Confirm requirements before ordering duplicates.
Mistake #4: Assuming Probate Works the Same Everywhere
Probate can become more complex when one or more heirs live outside Brazil or were born abroad. Distance, language barriers, unfamiliar documents and differences between legal systems can make the process harder to manage.
A foreign probate order does not automatically finish the Brazilian estate. Brazilian assets require the appropriate local procedure. Applicable succession law is also a separate question from an heir’s nationality or residence; international estates need coordination rather than assumptions.
There are also cases where an heir left Brazil at a young age and does not know what assets the deceased left behind.
In other situations, an heir may not have had contact with the deceased for many years. As a general rule, this alone does not necessarily mean that the heir lost the right to inherit. In these cases, legal advice is essential to understand inheritance rights under the applicable law and the Brazilian procedural requirements.
Locating real estate, bank accounts, companies, or other assets may also require a careful and detailed review. When probate involves heirs abroad or documents issued outside Brazil, legal guidance from the beginning can make the process safer and more efficient.
What to do: provide counsel with the existing foreign estate file, any will, family records and known Brazilian asset details. Coordinate with foreign advisers and identify what must be done in each jurisdiction. See our foreign-will guide where a will is involved.
How Oliveira Lawyers Can Help
The right legal guidance can help the family understand the appropriate procedure from the beginning. It can also help identify whether the case requires judicial probate or extrajudicial probate, which authorized measures may be available, and which documents will be required.
At Oliveira Lawyers, we assist families with probate proceedings and estate-related matters in Brazil. The engagement should identify whom we represent, the scope of work and any conflicts between interested parties. Representing one heir does not make the firm counsel for every family member.
We also assist in cases involving heirs abroad, foreign documents, asset searches, estate organization, and cross-border probate questions. If you need assistance with inheritance matters or guidance on the next steps after the loss of a loved one, contact Oliveira Lawyers to discuss how our team can assist you.
Legal references
Code of Civil Procedure, articles 611, 613–614 and 619; Civil Code, articles 1,784 and 1,791–1,795; and CNJ Resolution 35, articles 11, 11-A, 12-A, 12-B and 15.