Extrajudicial Inventory
What is it?
The inventory is the procedure used to determine the assets, right and debts of the deceased. With the sharing, the transfer of ownership of the deeds to the heirs is instrumentalized.
The law 11.441 / 07 made easier for the citizens to make the inventory procedure less bureaucratic by allowing this act to be performed in a notary public, by means of public deed, in a quick, simple and safe manner.
Attention: even if the person died before Law 11.441 / 07, it is also possible to make the inventory by public deed, if the requirements of the law are fulfilled.
What are the requirements for conducting an inventory at a registry office?
In order for the inventory to be carried out in a notary public office, it is necessary to observe the following requirements:
a) All heirs must be of legal age and liable;
b)There must be consensus among the heirs as to the sharing of assets;
c) The deceased cannot have left a will, unless the will is expired or revoked;
According to the Providence 37 / 2016 of the Internal Affairs Department of the State of São Paulo, even if there is a valid will, if there is prior judicial authorization, it is possible that the inventory is made in a notary public office.
d) The deed must have the participation of a lawyer.
If there are children who are minors or incapacitated, the inventory must be made in court. If there are emancipated children, the inventory can be done in a notary public office. The deed of inventory does not depend on judicial approval.
To transfer the assets to the name of the heirs, it is necessary to present the deed of inventory for registration at the Registry of Real Estate (real estate), at Detran (vehicles), at the Registry of Civil Registry of Legal Entities or at the Commercial Registry (companies), banks (Bank accounts) etc.
Attention: If there is a judicial inventory in progress, the heirs can, at any time, give up the process and choose to write an extrajudicial inventory.
What is the competent registry office to carry out an inventory?
The extrajudicial inventory can be made at any notary public office, regardless of the parties’ domicile, the location of the assets or the place of death of the deceased. The jurisdiction rules of the Code of Civil Procedure do not apply to out-of-court inventory.
Attention: the parties can freely choose the notary of their trust.
What documents are required to make an inventory at a notary public?
To draw up the deed of inventory, the following documents are required:
Documents of the deceased:
- ID, CPF, death certificate, marriage certificate (updated up to 90 days) and deed of prenuptial agreement (if any);
- Certificate proving the absence of a will issued by Colégio Notarial do Brasil, through Censec (http://www.censec.org.br/);
- Negative certificate from the Federal Revenue Service (Receita Federal) and the National Treasury (Procuradoria Geral da Fazenda Nacional);
- Documents of the spouse, heirs and respective spouses;
- ID and CPF, information about profession, address, birth certificate, marriage certificate of spouses (updated up to 90 days).
Attorney documents:
- OAB card, information on marital status and address of the lawyer;
- Information on assets, debts and obligations, description of ITCMD sharing and payment;
- Urban real estate: burden of proof issued by the Real Estate Registry Office (updated up to 30 days), IPTU booklet, negative certificate of municipal taxes levied on real estate, declaration of settlement of condominium debts;
- Rural properties: encumbrance certificate issued by the Real Estate Registry Office (updated up 30 days), certified copy of the ITR declaration for the last 5 (five) years of Rural Property Debt Negative Certificate issued by the Federal Revenue Service – Ministry of finance, Rural property Registration Certificate (CCIR) issued by INCRA;
- Movable assets: vehicle documents, bank statements, certificate from the commercial board or civil registry of legal entities, invoices deeds and jewelry, etc.
Attention: the payment of the Tax on Transmission of Property Causa Mortis and Donations (ITCMD) must be made within 180 days from the date of death, without fine incurrence.
Is it necessary to hire a lawyer to do the inventory at a notary public office?
The law requires the participation of a lawyer as a legal assistant to the parties in the inventory deeds. The notary, as well as the judge, is a professional of the law that gives public competition, and acts with impartiality in the legal guidance of the parties.
The lawyer attends the act to defend the interests of his clients. Heirs may have separate lawyers or one lawyer for all.
The lawyers must sign the deed together with the parties involved. It is not necessary to present a petition or power of attorney, since this is granted by those interested in the inventory deed itself.
Attention: If one of the heirs is a lawyer, he/she can also act as a legal assistant in the deed.
Is it possible to be represented by a proxy in the inventory deed?
If the interested party is unable to appear in person at the registry office to sign the inventory deed, he may appoint a proxy by means of a public proxy, made in a notary public office, with specific powers for this purpose.
What is negative inventory?
The negative inventory is used to prove that there are no assets to share.
It is necessary if the heirs want to prove that the deceased has left only debts, or if the surviving spouse wants to freely choose the property regime for a new marriage.
What is oversharing?
If, after the inventory is closed, the heirs discover that some asset has not been inventoried, it is possible to carry out the over-share by means of a public deed, observing the following requirements: (a) larger and capable heirs; (b) consensus among the heirs as to the sharing of assets; (c) consensus among the heirs as to the sharing of assets; (c) inexistence of a will (provided it is not expired or revoked), unless there is a previous judicial decision authorizing the inventory at the notary public; (d) lawyer representation.
The probate de Bonis non, can be done extrajudicially, at any time, even if the previous sharing was done judicially and even if the heirs, today bigger, were smaller or incapable at the time of previous sharing.
Can the stable union in inventory be recognized?
If the deceased lived in a stable union, the heirs can recognize the existence of that union in the deed of inventory.
If the partner is the only heir or if there is a conflict between him and the other heirs, the recognition of the stable union must be done in court.
It is recognized as a family entity the stable union between man and woman, configured in public continuous and lasting coexistence with the objective of constituting a family. The Supreme Federal Court attributed to same-sex unions the same effects as the hetero affective stable union.
Is it possible to renounce the inheritance?
If the heir has no interest in receiving the inheritance, the waiver can be made by public deed.
Is it possible to carry out an inventory deeds located abroad?
If the deceased leaves assets located abroad, it is not possible to make the inventory by public deed.
How much does it cost?
The price is fixed by law in all registries in this State. To check the values, consult the notary public of your choice.
Source: www.cnbsp.org.br