Inheritance of Assets Located in Brazil: Jurisdiction, Applicable Law and Probate

If a person dies owning assets in Brazil, those assets are settled in Brazil — regardless of the deceased’s nationality, of where they lived, and of whether a probate is already running in another country.

This single rule determines almost everything else: where the proceeding runs, which documents are needed, what heirs abroad have to do, and why a foreign probate order will not transfer a Brazilian apartment. This article explains how the Brazilian side works, and how it interacts with a foreign estate.

Which country settles the estate?

Article 23, II of the Code of Civil Procedure gives the Brazilian authority exclusive jurisdiction to carry out the probate and division of assets situated in Brazil. Exclusive means what it says: no foreign court can do it, and a foreign decision purporting to do it will not be recognised by the Superior Court of Justice.

The rule applies even where the deceased was a foreign national who never lived in Brazil.

The reverse is also true, and it surprises families who expect one global proceeding. The Superior Court of Justice has held that assets located abroad do not form part of a Brazilian probate — and, more than that, that they cannot be brought into the calculation when working out the shares of the surviving spouse and the necessary heirs.

The practical consequence: two estates, two proceedings, two sets of lawyers, running in parallel. Coordinating them matters, because decisions taken in one can affect the tax position in the other.

Which law decides who inherits what?

Jurisdiction and applicable law are different questions, and this is where families most often go wrong.

Under article 10 of the Law of Introduction to the Norms of Brazilian Law, succession is governed as a rule by the law of the deceased’s last domicile. So a Brazilian court may end up applying foreign law to decide who the heirs are and in what proportion.

But there is an important safeguard. Where the succession concerns a Brazilian spouse or Brazilian children, Brazilian law applies whenever it is more favourable to them than the foreign law would be. The same protection appears in article 5, XXXI of the Federal Constitution.

What is the legítima, and why does it matter to foreigners?

Brazilian succession law is not one of free disposal.

Half of the estate — the legítima — is reserved by law for the necessary heirs: descendants, ascendants and the spouse. Only the remaining half, the parte disponível, can be freely left by will.

For anyone coming from a legal system where a testator may disinherit freely, this is the point to absorb early: a will validly made abroad will not, as to Brazilian assets, defeat the legítima. Estate planning that assumes otherwise tends to unravel exactly when it is meant to work.

Court probate or notarial deed: which route applies?

	Out-of-court (notary)	Court
Agreement among heirs	Required, in full	Not required
Minor or incapable heir	Possible since Resolution 571/2024, with conditions	Always possible
Will	Only after a final court decision expressly authorising it	Always possible
Typical duration	Shorter, when the conditions are met	Longer
Representation	A lawyer must take part	A lawyer must take part

Resolution 571/2024 of the National Council of Justice widened the notarial route considerably, but the conditions are strict and cumulative.

Where a minor or incapable heir is involved: the Public Prosecution Service must give a favourable opinion; the minor may only receive an ideal fraction of every asset, not a specific asset; and no disposal of the minor’s share may take place in the same act.

Where there is a will: the notarial route is available only after a final and unappealable court decision, in the proceeding for opening and carrying out the will, that expressly authorises it. The notary comes after the judge, not instead of the judge. And where the will contains a recognition of parentage or another irrevocable declaration, the whole probate must be judicial.

How do heirs living abroad take part?

They do not need to travel. Three things are required:

1. A power of attorney with express powers to represent them in the probate, to accept the inheritance and to sign the deed of division — see our article on granting a power of attorney from abroad.
2. Personal documents, with an apostille and a sworn translation made in Brazil.
3. A CPF for each heir. An heir without a CPF cannot be entered on the property record, which stops the transfer even after everything else is agreed.

A practical example

An Italian national dies domiciled in Milan, leaving two children — one Italian, one Brazilian — a flat in Milan and a house in Salvador.

The house in Salvador is probated in Brazil, exclusively. The flat in Milan is settled in Italy, and it does not enter the Brazilian calculation at all. Italian law governs the succession as the law of the last domicile — unless, on the point in question, Brazilian law turns out to be more favourable to the Brazilian child, in which case Brazilian law applies to that extent.

Both children can be represented by a Brazilian lawyer under powers of attorney signed at the Brazilian consulate in Milan. If they agree on everything and both are adults, the division can be done by notarial deed rather than in court.

Which documents will be needed?

Document	Notes
Death certificate	With apostille and sworn translation if issued abroad
Deceased’s identity and CPF	CPF is required even for a foreign deceased who held assets in Brazil
Marriage certificate or proof of stable union	Defines the spouse’s share and the matrimonial property regime
Birth or marriage certificates of the heirs	Establishes the line of succession
Will, if any	With the court decision on its opening and performance
Updated matrícula of each property	Issued recently by the Real Estate Registry
Statements for bank accounts, shares, vehicles	As at the date of death
ITCMD assessment and payment	Rate and deadline set by each state
CPF for every heir	Without it the transfer cannot be registered

What goes wrong most often?

• Property never registered in the deceased’s name. A house bought decades ago with a deed that was never registered is not, legally, part of the estate yet. That chain has to be regularised first, which can take longer than the probate itself.
• Missing the ITCMD deadline. States set their own filing periods and normally apply a penalty for late filing. The clock starts at the death, not when the family gets organised.
• Assuming a foreign will settles it. It does not, as to the legítima and as to Brazilian assets.
• Heirs who cannot be located, or who refuse to sign. Without full agreement the notarial route closes and the case goes to court.
• No CPF for an heir abroad, discovered at the registration stage, when everything else is already done.

What is the practical next step?

Two documents map almost the whole case at the outset: the death certificate and an up-to-date matrícula for each Brazilian property. Together they show who the deceased was for Brazilian purposes, what is actually in their name, and whether anything on the record has to be regularised before the estate can move.

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Sources: Code of Civil Procedure, article 23, II · Law of Introduction to the Norms of Brazilian Law, article 10 · Federal Constitution, article 5, XXXI · Civil Code, articles 1.845 and 1.846 · Resolution 571/2024, National Council of Justice, amending Resolution 35/2007.