Brazilian Probate Proceedings
The Judicial Inventory Process —Step by Step
If a family member dies and there are assets in Brazil, the heirs must properly settle the estate there. Depending on the circumstances, this can be done either out of court or through judicial probate proceedings (inventário judicial).
Judicial probate proceedings are required, in particular, when the heirs cannot reach an agreement, when there are minor heirs or heirs who lack legal capacity, or when other legal requirements for an out-of-court proceeding are not met.
For many German heirs, the Brazilian probate process is unfamiliar at first. Unlike in Germany, there is no certificate of inheritance that proves heir status and immediately releases the estate. Instead, the entire estate is inventoried, appraised, and ultimately distributed to the heirs through a court proceeding.
In this article, we'll walk you through, step by step, how probate proceedings in Brazil typically unfold.
Step 1: Review of the Inheritance Case
Before submitting an application, it is first necessary to determine which legal framework applies.
Among other things, the following questions are examined:
Is a court-ordered inventory even necessary?
Which court has jurisdiction?
Who is an heir by law or by will?
Is there a will?
What matrimonial property regime applied?
What assets are included in the estate?
Are there any known debts?
In cases involving German-Brazilian estates in particular, additional issues of private international law must be clarified. If assets are located in both Germany and Brazil, both legal systems often need to be taken into account. A sound strategy can save a lot of time, money, and stress in such situations.
Example:
Anton is a German citizen. He spent his retirement in Rio de Janeiro, where he also passed away. He leaves behind several bank accounts in Brazil and a condominium in Stuttgart.
In this case, the estate must be settled in both Germany and Brazil. However, the German court must apply Brazilian inheritance law. The German court is having difficulty with this and is requesting a legal opinion on Brazilian inheritance law, as well as documents from Brazilian parties involved, which are difficult to obtain.
Step 2: Gathering the Documents
Next, all the documents required for the procedure will be obtained.
These include, in particular:
Death certificate,
Identification cards or passports of the heirs,
Marriage and birth certificates,
Will (if any),
Powers of attorney,
Land registry records,
Bank statements,
Vehicle documents,
Articles of Association,
Other documentation of assets.
Especially when dealing with matters involving foreign countries, German documents must regularly be apostilled and translated into Portuguese by a certified translator. In some cases, German documents must also first be registered in Brazil before they can be used in legal proceedings.
Missing or incorrectly submitted documents are among the most common reasons for delays.
Step 3: Submission of the inventory application
As soon as all the necessary information is available, the Brazilian attorney retained for the case will file the petition for inventory with the competent court.
The motion includes, among other things,
the decedent,
all heirs,
the matrimonial property regime,
known assets,
Known Liabilities
shown.
The court proceedings officially begin upon receipt of the petition.
Step 4: Appointment of the estate administrator (inventory taker)
The court then appoints an estate administrator (inventariante). This role should not be confused with that of an estate administrator under German law (§§ 1981 et seq. BGB).
He is responsible for administering the estate throughout the proceedings and serves as the court's point of contact.
His responsibilities include, in particular:
Administration of the estate,
Submission of additional documents,
Communication with the court and government agencies,
Notification to the other heirs,
Assistance in preparing the inventory of the estate.
In many cases, the surviving spouse or one of the heirs is appointed as the estate administrator. However, this does not mean that this person has sole authority over the estate. Rather, he or she acts in the best interests of all the heirs.
Step 5: Preparing the First Explanations
After being appointed, the estate administrator must provide the court with detailed information about the estate.
In particular, the following are explained:
all known assets,
existing liabilities,
Known donations,
existing bank accounts,
Real estate,
Corporate investments,
Vehicles,
Securities.
This gives the court a complete overview of the estate for the first time.
If additional assets come to light at a later date, they can generally be reported retroactively.
Step 6: Valuation of the Estate
The next step is to determine the value of each individual asset.
The valuation method varies depending on the type of asset.
When it comes to real estate, it is common for
Tax values,
Market values,
Expert opinion or
official assessment criteria
used.
Disputes among heirs often arise specifically over real estate assets.
The larger the estate, the more complex the valuation typically becomes.
Step 7: Involvement of the remaining heirs
All heirs will be given the opportunity to comment on the proceedings.
For example, you can
Information provided by the person conducting the inventory confirms that,
Require additional information,
File objections to evaluations,
dispute the share of the inheritance,
Challenge a will or
File a claim for compensation.
If all parties involved are in agreement, the proceedings can move forward relatively quickly.
If, on the other hand, disputes arise, the inventory process can be significantly prolonged.
Step 8: Payment of Brazilian Inheritance Tax (ITCMD)
Before the estate is finally distributed, Brazilian inheritance tax (ITCMD) must be calculated and paid on a regular basis.
The amount of tax depends on the state and the value of the purchase.
Without proof of tax payment, the process cannot be completed in many states.
In cases of German-Brazilian inheritance, potential tax obligations in Germany should always be examined. There is a risk of double taxation between Germany and Brazil, which is why careful planning is particularly important.
Step 9: Creating the Division Plan
Once all assets have been identified and tax issues have been resolved, the division plan is drawn up.
This is where you specify,
which heir receives which assets,
whether compensation payments are required,
whether real estate is being sold,
whether assets should be held jointly.
If all parties involved agree, the process can often be completed promptly.
Step 10: Court Ruling
After reviewing all the documents, the court will issue its final decision.
Depending on the case, the heirs receive, in particular, a “Formal de Partilha ” or a “Carta de Adjudicação.”
These documents form the legal basis for the transfer of the estate's assets.
However, they do not automatically replace all registry entries; in most cases, you must make these changes yourself.
Step 11: Transfer of Assets
Once the court proceedings have been concluded, the individual assets must be transferred to the respective heirs.
These include, for example:
Transfer of real estate in the land registry,
Authorization of bank accounts,
Transfer of company shares,
Vehicle re-registration,
Adjustment of additional registers.
Only after these steps have been completed can the heirs freely dispose of the inherited assets.
How long does a court-ordered inventory proceeding take?
The question of all questions! Unfortunately, there’s no one-size-fits-all answer. However, processing times of less than a year are generally the exception.
The duration depends in particular on the following factors:
Scope of the estate,
Number of heirs,
Dispute between the parties involved,
Real estate appraisals,
tax issues,
Workload of the competent court.
A simple judicial inventory proceeding can sometimes be completed within a year.
Complex or contentious proceedings, on the other hand, often take several years.
International estates, in particular, often require additional time, as documents must be obtained from various countries and different legal systems must be taken into account.
In some cases, following the Brazilian probate proceedings, German probate proceedings may also be required, which can also take some time.
Be prepared for a lengthy process.
Our Assistance in German-Brazilian Inheritance Cases
International probate matters present unique challenges. Often, some heirs live in Germany, while the estate is located entirely or partially in Brazil. This is compounded by complex issues of international inheritance law, specific tax considerations, and the need to coordinate with authorities and courts in both countries.
We support our clients throughout the entire process—from the initial legal review, through coordination with our Brazilian partner attorneys, to the final transfer of the estate’s assets. In doing so, we place particular emphasis on providing clear advice, maintaining transparent communication, and ensuring the process is completed as quickly as possible.
