The National Council of Justice (CNJ, the oversight body of the Brazilian judiciary) published a new resolution altering the framework for extrajudicial probate in Brazil. Moving forward, the Estate and Gift Tax (ITCMD, a state-level transfer tax) no longer needs to be paid in advance to execute a public deed of estate division.
Extrajudicial probate is an administrative procedure conducted directly at a notary office (Cartório de Notas) without court litigation. It allows the division of assets left by a deceased person, provided that all heirs agree on terms and are assisted by an attorney or public defender.
What changes under the new resolution
Before this change, the public deed of probate and partition could only be finalized if heirs provided proof of prior ITCMD payment to the state tax authority. The new measure addresses a petition by the Federal Council of the Notarial College of Brazil (CNB/CF) and amends Article 15 of CNJ Resolution No. 35/2007, removing this prior barrier.
With this update, the attending notary must record in the deed that the parties are aware of their tax liabilities. If the tax has not been paid upon execution, the notary office will notify the relevant State Revenue Department within five days, or as prescribed by applicable state tax legislation.
Focus on lack of immediate liquidity and sector growth
The advance payment requirement often created an obstacle for families whose inheritance consisted primarily of illiquid assets, such as real estate, without immediate cash available to settle the tax. This flexibility allows estate succession to proceed and be formalized, preventing delays caused by temporary liquidity shortages.
The removal of this barrier impacts a procedure that has seen significant expansion. According to data from the CNB/CF, between 2007—when Brazilian law first authorized out-of-court probate—and July 2026, 3,114,091 extrajudicial deeds were executed nationwide. The annual volume surged from 38,467 acts in the first year to 261,602 in 2025, an increase of approximately 580%. The procedure can be requested at any notary office, regardless of where the deceased passed away, and can be completed in person or online via the e-Notariado platform.
Attention to state laws and real estate registration
Although the CNJ resolution simplifies executing the deed, it does not create a tax exemption, reduction, or waiver. ITCMD falls under state jurisdiction, meaning each Brazilian state establishes its own rules regarding assessment, asset valuation, deadlines, and payment procedures. State tax authorities will need to adjust their procedures to the new framework.
Legal specialists from the Brazilian Bar Association (OAB) highlight that the rule does not set a uniform national due date for the tax. State statutory deadlines remain active, and late payments may trigger fines, interest, and other penalties provided under local law.
Furthermore, the actual transfer of ownership for certain assets may still require tax clearance at subsequent stages. In Rio de Janeiro, for instance, the Magistracy Council of the Rio de Janeiro State Court of Justice (TJRJ) has held, in proceeding 0214180-63.2022.8.19.0001, that proof of ITCMD payment may be required to register real estate transfers arising from succession. This requirement rests on Article 289 of the Public Records Law, Article 30, item XI, of Law No. 8,935/94, and local judicial administrative rules.
Final considerations
Waiving advance ITCMD payment provides greater flexibility in managing wealth succession, allowing families to formalize asset division without being halted by liquidity constraints. Nonetheless, financial planning for tax settlement and subsequent asset registration remains essential, as the underlying tax liability remains unchanged.
This content is for informational purposes only and does not constitute legal advice. For guidance on specific matters, consult a qualified lawyer.
