How to open probate: a step-by-step guide to the first 8 weeks after a death

There are plenty of articles about what the 60-day probate deadline is; this one is about how to meet it — week by week. Because the deadline is rarely missed in bad faith: it is missed because no one knows what the first step is, whom to hire, which document to request first. The family sits waiting for “someone to take charge” and the calendar waits for no one.

Opening probate means formally initiating the procedure that identifies and divides the deceased's assets — in court or at a notary office. Below is the practical playbook for the first 8 weeks, written for anyone going through this for the first time.

Weeks 1–2: what to do right after the death?

Three steps unlock all the others:

1. Get the death certificate (the master document for everything else);
2. Choose a point person — one heir who will centralize documents and decisions; probate without a conductor loses weeks to rework;
3. Hire the lawyer — a lawyer is required by law in both routes (art. 610, § 2º, of the CPC) and, brought in early, turns the following weeks into a checklist instead of trial and error.

This is also the stage for the will search at the national notarial registry (Censec): the answer shapes the design of the entire procedure.

Weeks 2–3: how to choose between the notary office and the courts?

The out-of-court route (a public deed at a notary office) requires: heirs who are all adults with full legal capacity, consensus on the division of the estate, and a compatible will situation — since CNJ Resolution 571/2024, the existence of a will no longer rules out the notary office, as long as the will has been registered or cleared by a court. When the requirements are met, it is the rational choice: it concludes in 30 to 60 days, costs less and unlocks bank accounts quickly. If any requirement is missing — a minor, an heir lacking legal capacity, a dispute — the route is the court-supervised one, with an opening petition filed in the courts of the deceased's last domicile and the appointment of an estate administrator. The contrast guides the decision: consensus opens the door to the notary office; conflict forces the lawsuit.

Weeks 3–6: how to list assets, debts and documents without stalling?

The asset survey runs in parallel with the personal paperwork:

• Real estate: up-to-date property records (matrícula) — practical shelf life of 30 days, so request them last — plus the IPTU property tax bill and the reference market value;
• Finances: bank and investment statements as of the date of death; the last income tax return is the map that keeps assets from being forgotten;
• Companies: articles of association and amendments at JUCESP (the São Paulo commercial registry); ownership interests go into the division of the estate and may require a balance sheet;
• Vehicles: registration certificate (CRLV) and reference value;
• Debts: financing and loans — they reduce the estate and lower the ITCMD.

Assets with pending issues (an unregistered property, an unrecorded construction) do not prevent the opening: they go on the list with a caveat, and the regularization runs in parallel.

Weeks 6–8: the filing and the ITCMD

With the file complete, the lawyer: on the out-of-court route, drafts the deed, books the signing at the notary office and prepares the ITCMD declaration (4% in São Paulo) in the state treasury's system; on the court route, files the opening petition with the initial declarations. The milestone that stops the penalty risk is this filing/opening within the 60 days — paying the tax and completing the division of the estate follow their own course afterwards, without the penalty under art. 21 of Law 10.705/2000.

A concrete example: the Teixeira family's 8 weeks

Dona Cecília passed away on a Friday in April, leaving two children, an apartment and R$ 150,000 in investments. Week 1: death certificate, eldest son as point person, lawyer hired, will search came back negative. Week 2: out-of-court route chosen. Weeks 3–5: statements, income tax return, personal certificates; week 6: updated property records. Week 7: deed draft and ITCMD declaration. Week 8 (day 53): deed signed. Accounts unlocked on day 70, penalty: zero, total cost within budget. No heroic steps — just the right order, in the right week.

The most common (and costly) mistakes

1. Waiting for “the family to get together” before starting. The meeting happens in week 6 and the deadline dies in week 9. Risk: a 10% penalty over nothing but scheduling.
2. Hiring the lawyer last. Without the technical roadmap, weeks 1–4 turn into trial and error. Risk: expired documents and rework.
3. Requesting the property record in week 1. Practical shelf life of 30 days. Risk: paying registry fees twice.
4. Holding up the opening because of one irregular asset. Risk: trading a simple caveat for the full penalty.

Actionable checklist: the 8 weeks on one page

• W1: death certificate + point person + lawyer + will search;

• W2: choice of route (notary office × court) and division of tasks;

• W3–5: everyone's personal documents, statements as of the date of death, income tax return, JUCESP, debts;

• W6: property records and real estate certificates (short shelf life);

• W7: deed draft/petition + ITCMD declaration;

• W8: filing of the opening — before day 60.

Frequently asked questions

How is probate opened, in practice?

By gathering the basic paperwork (death certificate, personal documents, list of assets) and filing, through a lawyer — mandatory on both routes (art. 610, § 2º, of the CPC) —, either the deed at the notary office (out-of-court route) or the opening petition in court (court-supervised route), within 60 days of the death (art. 611 of the CPC).

Who can open probate?

The spouse or partner, the heirs, the executor of the will and even creditors have standing, among others listed in the CPC (arts. 615 and 616). In practice, any heir can take the initiative — and should, if the others sit still: the late-filing penalty hits the tax due on the entire inheritance.

Can I open probate without all the asset documents?

You can — and often should. What matters is filing the opening on time with the assets known so far, flagging anything pending (an unregistered property, a balance still to be confirmed). Documents and fixes are added as the procedure moves along. Waiting for the “perfect” file before opening is the classic recipe for the penalty.

Where is probate opened: at which notary office or court district?

Out-of-court probate can be signed at any notary office in the country, at the parties' choice — regardless of where the deceased lived. Court-supervised probate runs, as a rule, in the courts of the deceased's last domicile (art. 48 of the CPC). In São Paulo, choosing the notary office strategically can shorten schedules and timelines.

When should I bring in a lawyer to open probate?

In the first or second week after the death. Beyond being required by law, the lawyer is the one who picks the route, sequences the documents so nothing expires and files within the 60 days. The 8-week playbook in this article only works with that professional inside it from the start.

Probate on time is method, not luck

The families that meet the 60 days are not the ones who suffered less — they are the ones who followed a sequence: master document, point person, lawyer, route, file, filing. The method fits into 8 weeks and a one-page checklist. The alternative to it has a name, a bracket and a percentage in São Paulo's statute.

At Falchet e Marques Sociedade de Advogados, a law firm in São Paulo (Av. Paulista), we take charge of the 8 weeks of probate — from the document plan to the filing at the notary office or before the São Paulo State Court (TJSP) — with a calendar shared with the family and one focus: opening on time, with no penalty.

Talk to our team on WhatsApp: +55 11 95901-1854 — tell us which week you are in since the death, and get a plan for the weeks that remain.