28/10/2024
The changes introduced by Resolution No. 571, issued by the National Council of Justice on August 26, 2024 (“CNJ Resolution No. 571/24”), regarding administrative probate proceedings, provided upon the execution of a public deed, are very welcome.
Previously, the administrative probate procedure was subject to the fulfilment of the following requirements: (i) all heirs and/or legatees must be capable and of age; (ii) inexistence of a last will; and (iii) common agreement regarding the estate’s division.
The probate process should otherwise necessarily be carried out in court, unless a court order was issued expressly authorizing the execution of the corresponding public deed with the competent public notary, in accordance with a Superior Court of Justice (“STJ”) decision (Resp 1.808.767) of 2019.
CNJ Resolution No. 571/24 has now expressly permitted administrative probate proceedings in cases involving underage or incapacitated individuals, regardless of a previous court order authorizing it. However, in such cases, it is mandatory that each heir is entitled to “an identical share of each estate asset”.
In any event, the enforceability of the public deed of partition of a estate, whenever there is an underage or incapacitated individual involved, is subject to the Public Prosecutor’s Office statement.
CNJ Resolution No. 571/24 also authorizes administrative probate proceedings in cases in which a last will has been executed, as long as there is common agreement between the parties regarding the estate’s division and a court order is issued authorizing the execution of the corresponding public deed, with the competent public notary.
Another interesting innovation introduced by CNJ Resolution No. 571/24 is the possibility of the estate’s administrator selling the estate’s assets, regardless of a court order.
However, the corresponding public deed of partition must expressly mention and grant specific powers to the estate’s administrator for the purpose of paying the probate’s expenses.
Even though any asset sold during an administrative probate proceeding shall not be considered for partition purposes, it must be taken into account for the purpose of calculating probate fees and taxes, with due observance of forced heirship rules.
Thus, CNJ Resolution No. 571/24 expands and facilitates the adoption of administrative probate proceedings, which is usually an interesting alternative from financial and time perspectives, as well as for purposes of preserving good family relationships.
