The probate filing deadline: how to meet the 60 days and avoid a penalty of up to 20% and frozen assets
The deadline to open probate is 60 days. See the penalty of up to 20% of the ITCMD in São Paulo, the account freeze and how to avoid it — a practical guide with a checklist.
The deadline to open probate (inventário) is 60 days (2 months) counted from the date of death (art. 611 of the CPC). In São Paulo, missing that deadline triggers a penalty of 10% of the ITCMD (São Paulo's inheritance and gift tax) — rising to 20% if the delay goes past 180 days (art. 21 of State Law 10.705/2000). Meanwhile, the deceased's accounts and assets remain frozen. Opening probate on time, at a notary office or in court, avoids those costs.
Someone who has just lost a loved one rarely stops to think about deadlines. The electricity bill comes due, the deceased's salary is returned to the bank, the apartment loan goes unpaid — and, in the middle of grief, nobody tells the family the clock is already running. Two months later, the penalty arrives. These scenarios play out every day in São Paulo's notary offices and family courts.
Probate is the procedure that identifies the assets, debts and heirs of someone who has died and formalizes the transfer of the estate — the “division of the estate”. In this article, we will show what the legal deadline is, what missing it costs in São Paulo, why banks freeze the accounts, how to choose between court-supervised probate and out-of-court probate at a notary office, and what to do if the deadline has already passed.
What is the legal deadline to open probate?
The deadline to open probate is 2 months counted from the opening of the succession — that is, from the date of death. That is what art. 611 of the Brazilian Code of Civil Procedure (CPC) provides: “the probate and division proceedings must be initiated within 2 (two) months, counted from the opening of the succession”, and they should conclude within the following 12 months, a period the judge may extend.
One important detail: meeting the deadline does not mean finishing probate within 60 days — it means formally starting it within that window, with the petition filed in court or the procedure opened at the notary office. The reason is simple to explain to a client: the State wants the deceased's assets out of the “gray zone” where no one can manage them — and it wants to collect the inheritance tax, the ITCMD.
What does missing the 60-day deadline cost in São Paulo?
In São Paulo, missing the deadline costs a penalty of 10% to 20% of the ITCMD due, plus interest. The penalty is set out in art. 21, I, of State Law 10.705/2000, which governs São Paulo's ITCMD (a rate of 4% of the value of the assets transferred):
| When probate is opened | Penalty on the ITCMD |
|---|---|
| Within 60 days of the death | No penalty |
| Between 61 and 180 days | 10% |
| After 180 days | 20% |
The impact is concrete. On a R$ 2 million estate, the 4% ITCMD comes to R$ 80,000. The 20% penalty adds R$ 16,000 — money that comes straight out of the inheritance and could have been avoided by simply opening on time. Overdue tax also accrues late-payment interest calculated month by month: the longer the delay, the bigger the bill. This is succession law's most literal “cost of inaction”.
Why are the deceased's accounts frozen?
The accounts are frozen because, once notified of the death, banks automatically freeze the deceased's checking accounts, savings and investments — no court order needed. It is an internal procedure designed to prevent improper withdrawals and later liability. The funds are only released with a court authorization (alvará judicial) or once the division of the estate is complete.
In practice, this means that:
- automatic debits (electricity, condominium fees, loan installments) stop being paid, generating interest and the risk of collection lawsuits;
- salaries, retirement benefits and pensions that used to land in the account are returned to the payer;
- funds for the family's urgent expenses become inaccessible.
A well-run out-of-court probate unlocks this situation in 30 to 60 days, on average. The court route usually takes 8 to 18 months in São Paulo to produce the same effect — which is why choosing the right route matters so much.
Court-supervised or out-of-court probate: which fits your case?
Out-of-court probate (at a notary office, by public deed — art. 610, § 1º, of the CPC) is the faster and cheaper route, but it has requirements; the court-supervised route is mandatory whenever one of them is missing.
| Criterion | Out-of-court (notary office) | Court-supervised |
|---|---|---|
| Consensus among heirs | Essential | Not required (the judge decides) |
| Minor or legally incapable heir | As a rule, bars this route | Available |
| Will | Possible since 2024, with prior court authorization or registration (CNJ Resolution 571/2024) | Available |
| Lawyer | Mandatory | Mandatory |
| Average timeline | 30 to 60 days | 8 to 18 months |
| Relative cost | 40% to 60% lower | Higher (court costs + time) |
The recent change is worth highlighting: since 2024, CNJ Resolution 571/2024 allows probate at a notary office even when there is a will, as long as the will has been previously registered or authorized by the competent court — before that, any will pushed the family into a court case. Translation for the client: today, far more families can resolve everything at the notary office, quickly and at lower cost.
Which documents to gather in the first 60 days?
To open probate on time, the family needs to gather a minimum set of documents — and this is where most people lose precious weeks:
- For the deceased: death certificate, ID and CPF, updated marriage or stable-union certificate (no older than 90 days), last income tax return;
- For the heirs: ID, CPF, birth or marriage certificates and proof of address for everyone;
- For the assets: updated property record (matrícula) for each property (no older than 30 days, issued by the Real Estate Registry), vehicle registration certificates (CRLV), bank statements as of the date of death and proof of investments.
Requesting updated certificates, locating old documents and mapping “forgotten” assets takes real time. That is why the ideal is to start in the first or second week after the death.
A concrete example: the Almeida family
Seu João passed away in São Paulo leaving an apartment worth R$ 1.2 million, R$ 300,000 in investments and three adult children in full agreement. ITCMD at 4% of R$ 1.5 million: R$ 60,000. The children, advised in the second week, chose out-of-court probate: deed signed in 45 days, accounts unlocked, zero penalty. Had they left it for “after the holidays” and opened in month 7, they would have paid the same R$ 60,000 plus a R$ 12,000 penalty (20%) and interest — roughly 20% of their father's investments consumed by the delay.
The most common (and costly) mistakes
- Waiting for “the dust to settle”. A 3- or 4-month wait already puts the family in the penalty bracket. Risk: 10% to 20% of the ITCMD.
- Fighting over peripheral items. A disagreement over who keeps a piece of furniture pushes the case from the notary office into court. Risk: trading 60 days for 18 months.
- Ignoring properties with irregular records. An unrecorded construction or an outdated registration stalls the division of the estate. Risk: months of delay and regularization costs under pressure.
- Failing to declare all the assets. Concealing assets in probate can be punished with the loss of any right over the concealed asset (art. 1.992 of the Brazilian Civil Code).
Actionable checklist: the first 4 steps
- Weeks 1–2: gather the death certificate and basic documents; choose one heir as the point person;
- Week 2: first meeting with a specialized lawyer to map the assets and choose the route (notary office or court);
- Weeks 3–6: request updated certificates and property records; start regularizing properties in parallel;
- By day 60: file the opening of probate and organize the payment of the ITCMD.
Frequently asked questions
What is the deadline to open probate after a death?
The deadline is 60 days (2 months) counted from the date of death, under art. 611 of the Brazilian Code of Civil Procedure. The deadline applies to starting probate — in court or at a notary office —, not to finishing it. Opened on time, there is no penalty on the ITCMD, even if the division of the estate takes longer.
How much is the penalty for late probate in São Paulo?
In São Paulo, the penalty is 10% of the ITCMD when probate is opened between 61 and 180 days after the death, and 20% after 180 days (art. 21, I, of State Law 10.705/2000). Since São Paulo's ITCMD is 4% of the estate, on a R$ 1 million inheritance the maximum penalty comes to R$ 8,000, plus interest.
Can I do probate at a notary office if there is a will?
Yes, since 2024. CNJ Resolution 571/2024 now allows out-of-court probate even when there is a will, as long as the will has been previously registered or authorized by the competent court, all heirs have full legal capacity and there is consensus. Before that change, any will forced the court route.
How long does probate take?
Out-of-court probate, when available, is completed in 30 to 60 days on average. Court-supervised probate in São Paulo takes 8 to 18 months on average, and can stretch longer in cases with conflict among heirs, assets abroad or irregular property records. Complete documentation is the single biggest accelerator on either route.
When should I see a lawyer about probate?
Ideally within the first two weeks after the death — and, in any case, before day 60. A lawyer is required by law in both types of probate (art. 610, § 2º, of the CPC) and is the one who picks the cheapest route, organizes documents and calculates the ITCMD. Getting help early is what avoids penalties, prolonged freezes and conflict among heirs.
The 60-day deadline is not red tape: it protects the family's assets
The deadline to open probate exists to keep the inheritance from eroding into penalties, interest, frozen accounts and conflict. All of that is avoidable with organization in the first days and technical guidance from the start — prevention always costs less than the cure. And if the deadline has already passed, don't give up: the penalty applies, but there are strategies to pay the ITCMD in installments with the São Paulo tax authority and contain the total cost.
At Falchet e Marques Sociedade de Advogados, a law firm in São Paulo (Av. Paulista), we handle court-supervised and out-of-court probate with a focus on document speed and tax efficiency — so the family resolves the essentials on time and preserves what it has built.
Talk to our team on WhatsApp: +55 11 95901-1854 — send us the date of death and a preliminary list of assets, and get a recommendation of the fastest route for your case.