Judicial probate is an essential procedure for formalizing the division of assets and debts left by a deceased person among their heirs and successors. In Brazil, this process is indispensable for regularizing the transfer of assets, especially when there are incapacitated heirs, wills, or conflicts between the interested parties.

In this sense, the presence of a lawyer is mandatory, both in judicial and extrajudicial probate proceedings, according to article 610 of the Code of Civil Procedure, ensuring that all stages of the process are conducted in accordance with current legislation.

The importance of a lawyer in probate proceedings.

Brazilian law requires the presence of a qualified lawyer in any type of probate proceeding. In judicial proceedings, the lawyer advises the heirs on legal procedures, represents their interests, and ensures compliance with deadlines and procedural rules, preventing errors that could compromise the validity of the division of assets.

Main functions of a lawyer

• Drafting the initial petition: The lawyer initiates the process by presenting the court with a list of assets, debts, and heirs.
  
• Appointment of the executor: He oversees the appointment of a person responsible for the estate, advising them on their legal obligations.
  
• Conflict resolution: In cases of disagreements between heirs, the lawyer acts as a mediator, seeking agreements to avoid prolonged litigation.
  
• Complete documentation: He provides guidance in obtaining essential documents, such as certificates, registrations, and tax receipts, ensuring that the process does not suffer delays.

The role of the lawyer in the efficiency of the process.

The lawyer's role is fundamental in ensuring that the probate process proceeds efficiently and with legal security. They can anticipate problems and suggest solutions before they become obstacles, such as:

• Taxes and debts: calculates the ITCMD (Tax on Transfers Due to Death and Donations) and provides guidance on settling debts left by the deceased.
• Property regularization: It ensures that the division of assets is formalized correctly, avoiding future problems with the transfer of assets to the heirs.

How to conduct the process effectively.

1. Clear communication with the heirs

The lawyer must maintain clear and frequent communication with all heirs to avoid any misunderstandings and conflicts. Transparency helps each party understand their rights and responsibilities in the process.

2. Organization and deadlines

Efficiency in conducting the judicial probate process is directly linked to organization. The lawyer must:

• Keep track of legal deadlines, avoiding unreasonable delays.
• Keep all documents and receipts organized for any requests from the judge.

3. Negotiation and mediation of conflicts

The lawyer plays an important role as a mediator between the heirs, helping to avoid conflicts that could delay the probate process. Often, disputes arise from financial or emotional issues, or from a lack of clarity in the division of assets. 

In these situations, the lawyer not only applies the law, but also seeks fair agreements that benefit everyone involved.

The lawyer's ability to foster clear and efficient dialogue among the heirs is fundamental to ensuring that the probate process proceeds smoothly and without interruption. This guarantees that the division of assets is fair and swift, preserving both the estate and family harmony.

Difference between judicial and extrajudicial probate.

Judicial inventory

• Necessary when there is willIncapacitated heirs or disagreement among the heirs.
• Conducted under the supervision of a judge, with greater formality and legal rigor.

Extrajudicial inventory

• Held in registryprovided that all heirs are of legal age, capable, and in agreement with the division of assets.
• It requires the presence of a lawyer to accompany the process. Public deed inventory and ensure the legality of the process.

Legal assistance in extrajudicial probate proceedings.

Resolution 35/2007 of the National Council of Justice (CNJ) stipulates that a public deed of inventory can only be drawn up in the presence of a lawyer, proven by registration with the Brazilian Bar Association (OAB). The lawyer can:

• Prepare the draft deedwhich will be followed by the notary.
• To provide comprehensive assistance to the parties., reviewing and signing the document with the interested parties.

Procedures in the judicial inventory process

Appointment of the executor

The executor is chosen from among the heirs or appointed by the judge. The lawyer assists in selecting the ideal executor and obtaining their commitment before the judge.

Valuation and division of assets

The lawyer ensures that all assets are correctly valued and fairly distributed among the heirs. In case of disagreements, he can request a judicial appraisal.

Settlement of debts and taxes

The lawyer must verify the existence of any outstanding debts and ensure they are settled. They are also responsible for providing guidance on the payment of ITCMD (Inheritance and Gift Tax).

Fees and costs of probate

Attorney fees are determined based on the complexity of the case and the value of the estate, generally following the OAB (Brazilian Bar Association) fee schedule, which suggests a percentage between 5% and 10%. Other costs include:

• Court fees or notary fees;
• ITCMD (Inheritance and Gift Tax), the rate of which varies by state;
• Property registration fees, especially for real estate., after the approval of the division of assets.

The legal nature of inheritance and the role of the lawyer.

Inheritance is defined as the entirety of the assets, rights, and obligations left by the deceased, which are transferred to the heirs upon the opening of the succession. Article 80 of the Civil Code classifies the right to inheritance as real property, regardless of the nature of the assets included in the estate.

Thus, even if the estate consists only of movable property, such as cars or investments, inheritance rights are still treated as real estate, requiring specific formalities for their transfer.

Timelines and consequences of inaction in judicial probate proceedings.

The deadline for initiating probate proceedings is 60 days after the death, according to the Code of Civil Procedure. Failure to comply may result in:

• Fines and interest on ITCMD (Inheritance and Gift Tax).
• The process becomes more complex, especially if there are disputes among heirs.

Conclusion

The presence of a lawyer is essential for the efficient and secure conduct of probate proceedings. They act not only in managing the process but also as a mediator, preventing conflicts and ensuring that the heirs' interests are protected. Having adequate legal assistance avoids delays and promotes a fair and legally valid division of assets.

Choosing an experienced lawyer can make the difference between a lengthy and complicated probate process and a quick and smooth one. In addition to ensuring compliance with legal formalities, the lawyer guides the heirs through all stages, preserving the integrity of the estate and ensuring that the inheritance is correctly transferred.

Want to understand more about the judicial probate process and specialize in the area? Enroll in the Postgraduate Program in Civil Procedural Law at IDP . With renowned professors and a practical approach, you will be prepared to excel in procedural law, conducting probate proceedings quickly and efficiently.

References

BRAZIL. Law No. 10.406, of January 10, 2002. Establishes the Civil Code. Brasília, DF: Presidency of the Republic, 2002. Available at: https://www.planalto.gov.br/ccivil_03/leis/2002/l10406compilada.htm.

BRAZIL. Law No. 13.105, of March 16, 2015. Establishes the Code of Civil Procedure. Brasília, DF: Presidency of the Republic, 2015. Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm . Accessed on: October 12, 2024.

GAGLIANO, Pablo Stolze; PAMPLONA FILHO, Rodolfo Mario Veiga. New course of civil law, v. 7: law of succession. 11th ed. rev., enlarged, updated. São Paulo: Saraiva Jur, 2024. E-book. (1 online resource). ISBN 9786553629677. Available at: https://integrada.minhabiblioteca.com.br/books/9786553629677.

OLIVEIRA, Euclides de; AMORIM, Sebastião. Inventory and partition: theory and practice. 28th ed. rev., updated. São Paulo: Saraiva Jur, 2024. E-book. (1 online resource). ISBN 9788553623044. Available at: https://integrada.minhabiblioteca.com.br/books/9788553623044.