5/2/2022
Currently, in Brazil, it is possible to avoid a court procedure, for a probate, upon the execution of a public deed, with the competent public notary, observed the following requirements: (i) all heirs and/or legatees must be capable and of age; (ii) inexistence of last will; and (iii) common agreement regarding the estate division.
Otherwise, the probate process must be carried out in court, unless a court order is issued authorizing the execution of the corresponding public deed, with the competent public notary, in accordance with the Superior Court of Justice (“STJ”) decision, of 2019 (Resp 1808767).
In the same bias, Bill No. 606/22 has been recently filed, aiming to amend Article 610 of the Brazilian Civil Procedure Code, so as to extend and consolidate the possibilities of an extrajudicial probate process.
In the event that Bill No. 606/22 is converted into law, even upon the existence of a will left by the deceased, an extrajudicial probate process would be legally possible, provided that the will is previously registered in court or an express consent order from the competent court is obtained in this regard.
Bill No. 606/22 also allows the adoption of an extrajudicial probate process in cases in which there are incapable heirs and/or legatees, subject, however, to the previous consent of the Prosecution Office and to the issuance of the proper court order, which aims to protect the rights of underage or incapable heirs.
In addition, if there are incapable or underage heirs and/or legatees, the distribution of each of the assets in an out-of-court probate process, must observe a proportional and identical division among the heirs.
Whether in an in court or out-of-court context, Bill No. 606/22 leaves no doubt as to the compulsory character of mutual agreement amongst the interested parties, consolidating the recent STJ interpretation in this matter.
At present, Bill No. 606/22 is under analysis of the Constitution of Justice and Citizenship Commission of the Brazilian House of Representatives. If approved, it would represent a modernization, once it would accelerate the succession process and reduce the costs involved therein, contributing, thus, to the preservation of family relationships, and avoiding the estate’s exposal to unnecessary time-consuming and bureaucratic procedures.
