In principle, extrajudicial probate aims to formally transfer ownership of the deceased's assets to their heirs in a faster manner and in specific cases.
However, it wasn't always like this. Before Law 11.441/07 , probate proceedings could only be carried out through the courts, resulting in a consequently more bureaucratic process.
Here, therefore, we will see what an extrajudicial inventory is, how it is done, and who can perform it to more efficiently meet your client's needs.
What is an extrajudicial inventory?
First of all, César Fiúza's lessons teach that:
" Probate is, therefore, a judicial process by which the assets and liabilities of an estate are determined in order to arrive at the net estate (assets minus liabilities). This net estate, which is determined after the payment of debts and receipt of credits, will then be divided among the heirs. "
In other words, the extrajudicial inventory , which has the purpose of transmission explained by the author, is one that, instead of being done in the judicial sphere, is done in a notary's office.
This possibility is even foreseen in article 610, §1 of the 2015 Code of Civil Procedure. Despite Law 11.441/07 having primarily established the possibility of carrying out inventories through extrajudicial means, even while the 1973 Code of Civil Procedure was still in effect.
When can an extrajudicial inventory be done?
First and foremost, an extrajudicial inventory can only be carried out if it meets four requirements:
- All heirs forms older or capable;
- Exist agreement among all the successors;
- No will exists.;
- E participation of a lawyer.
It should also be noted that the extrajudicial inventory must follow the same deadline as the judicial inventory. That is, the heirs must provide the draft of the extrajudicial inventory within 2 (two) months after the opening of the succession (date of death) under penalty of fine.
Finally, the legal requirement for legal representation in probate proceedings does not prevent heirs from being represented by different lawyers; the important thing is that this professional is present.
How is an extrajudicial inventory conducted?
The extrajudicial probate process is initiated by the heirs. That is, the heirs, assisted by their lawyers, must go to any notary's office – regardless of where the deceased resided.
Finally, it should be noted that in this case, an extrajudicial inventory, the rules of jurisdiction of the Code of Civil Procedure do not apply. Therefore, it is understood that the procedure can be carried out in any notary's office.
In practice, calling the notary's office where the extrajudicial probate will be done and aligning the required documentation can be helpful, but it is generally essential that the heirs have the following documentation ready to complete the probate process.
General documents:
- Documents of the deceased (ID, CPF [Brazilian tax ID], death certificate, marriage certificate updated within the last 90 days, prenuptial agreement if applicable);
- Personal documents of the heirs and their appointed lawyers;
- Tax clearance certificate from the Federal Revenue Service and the Attorney General's Office of the National Treasury;
- Certificate proving the absence of a will;
- Proof of payment of ITCMD (Inheritance and Gift Tax).
When there are REAL ESTATE assets:
- Certificate of encumbrances issued by the Land Registry Office, updated within the last 30 days;
- Property tax bill (or a copy of the rural property tax declaration, in the case of rural property; this can be replaced by a tax clearance certificate from the Ministry of Finance) for the last five years.
When movable property exists:
- Bank account opening statement or contract;
- Invoice for tangible goods;
- Certificate from the commercial registry (or registry of legal entities) for companies;
- Vehicle documentation.
Furthermore, a good tip is to request a copy of the extrajudicial inventory from that notary's office. This way, the lawyer can fill in the data in advance, save time on the day they assist the client, and avoid potential typing errors at the notary's office.
Above all, a thorough and careful review by a legal professional is essential. Indeed, it is no coincidence that a lawyer is the fourth essential requirement for carrying out an extrajudicial probate proceeding.
What are the advantages of extrajudicial probate?
Undoubtedly, extrajudicial probate is a less bureaucratic form of probate.
This offers advantages such as speed and cost savings for the parties involved, since, as the procedure is entirely carried out in a notary's office and through a public deed, judicial approval is not even required.
However, not all probate proceedings can be carried out extrajudicially. Logically, for this method to be practical and quick, the specific case must also be free of obstacles, as judicial intervention would be indispensable, according to the requirements discussed.
Conclusion
Certainly, extrajudicial probate makes life easier for many people, helps to alleviate the burden on the judicial system, and generally resolves the client's issue much more quickly and efficiently.
Even so, it is prudent for the law to reserve this alternative only for specific cases upon fulfillment of legal requirements, since the complexity of some concrete cases does in fact require the intervention of the justice system.
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