Probate Action
- When a person passes away and leaves assets and heirs, the law requires that an inventory or probate process be opened to formalize the legal situation of the deceased and distribute the assets and debts among the legal heirs.
- The probate process can be either extrajudicial or judicial, each with its own requirements.
- Extrajudicial probate can be carried out at the Notary Office, with the presence of a lawyer, provided there are no minor or incapacitated heirs involved, there is consensus on the division of the deceased's assets, there is no will, and there are no assets abroad. After all documents are evaluated and the ITCMD tax is paid, the distribution is done through a public deed. The extrajudicial process tends to be faster, with an estimated completion time of around 12 months.
- Judicial probate, on the other hand, must proceed before one of the Family and Succession Courts, and its requirements are the opposite of extrajudicial probate. Judicial intervention is needed when there are minor or incapacitated heirs, assets abroad, disagreements among heirs about the division of assets and debts left by the deceased, or if there is a will. Judicial probate generally takes longer due to the need to resolve disputes, especially when there are many assets, debts, and/or heirs to be analyzed and divided.
- There is also the summary probate, a procedure involving fewer procedural acts than the full probate process and can be either summary or summary judicial. Summary probate is conducted with the consensus of capable heirs, regardless of the value of the estate. In the case of summary or ordinary probate, consensus among capable heirs is also required. However, with changes to the Code of Civil Procedure, if there is an incapacitated heir, the consent of the parties and the Public Prosecutor's Office is sufficient, provided the estate value does not exceed 1,000 minimum wages, with an estimated duration of 12 months.
- In any case, at Legnare Duarte Advogados, we are ready to assist you in choosing the most suitable option for your case.