National Council of Justice (CNJ) Resolution No. 695/2026 separated the notarial act from payment of the tax. State tax authorities and registry officers continue to require proof of payment in full to record the instrument.
What happened
At its 12th Ordinary Session, on August 18, 2026, the CNJ plenary decided Request for Administrative Action (Pedido de Providências) No. 0008622-24.2025.2.00.0000, submitted by the Brazilian Notarial Association – Federal Council, with Justice Mauro Campbell Marques, National Inspector of Justice, as reporting justice. Of the three requests made, only one was granted, unanimously: amendment of Art. 15 of CNJ Resolution No. 35/2007, whose wording provided that "payment of the applicable taxes must precede execution of the deed." The decision was incorporated into CNJ Resolution No. 695/2026, signed by CNJ President Justice Edson Fachin.
The other two requests were denied: waiver of a prior judicial decision for out-of-court (notarial) probate (inventário extrajudicial) involving a revoked or lapsed will, and execution of a divorce or consensual dissolution with asset division where there are minor children or children lacking legal capacity.
The technical reading
What the resolution did was separate two stages that notarial practice had merged: the notarial act and payment of the tax. It did not create an exemption, did not suspend enforceability, and did not change any deadline. ITCMD remains due, the return remains mandatory, deadlines continue to run, and late payment continues to generate penalties and interest.
The problem is that the CNJ has authority to regulate notarial and registry activities, but not to legislate on a state tax — ITCMD falls within state jurisdiction under Art. 155, I, of the Constitution. And the next obstacle is not in Resolution 35/2007: it is in Law 6,015/1973, Art. 289, which requires the registry officer to verify payment of taxes due as a result of the acts submitted for registration, and in the tax liability of notaries and registry officers established in Art. 134, VI, of the National Tax Code (CTN), alongside the proof-of-payment requirement in Art. 192 of the CTN.
State laws operate on this foundation. In São Paulo, Art. 25 of Law No. 10,705/2000 makes registration conditional on proof of payment. In Rio de Janeiro, Law No. 7,174/2015 follows the same approach. In Paraná, Art. 26, § 8, of Law No. 18,573/2015 requires payment in full for recording, with support from the Paraná Court of Justice (TJ-PR). The practical result is uneven: in some states the deed is issued but registration stalls; in others, the notary will not even execute it, because the local judicial oversight authority has not yet issued guidance and the notary is personally liable.
For the heir, the consequence is concrete: a deed that is executed but not registered does not transfer ownership. The property cannot be sold, cannot be pledged as collateral, and cannot be used in financing — and meanwhile, the tax continues to be adjusted. The measure is useful precisely where it was intended to be: families that need to complete probate before selling an asset and using the proceeds to pay the tax. But it is only useful if the path to the Real Estate Registry (Registro de Imóveis, the office that records real property rights) is mapped out beforehand, rather than discovered afterward.
It is worth recalling the timetable specific to succession: Art. 611 of the Code of Civil Procedure (CPC) requires probate to be initiated within two months after succession opens, and Art. 21 of São Paulo Law No. 10,705/2000 provides for a penalty on the tax when probate is not requested within the deadline — although the São Paulo Court of Justice (TJ-SP) has been setting aside the penalty when the delay is not attributable to the taxpayer, especially in out-of-court probate.
Who this reaches
- Heirs with real estate assets and no liquidity to pay the tax
- Families whose only significant asset is their residential property
- Heirs living abroad who depend on an attorney-in-fact and short windows of time to carry out acts in Brazil
- Probate proceedings stalled for years for lack of funds to pay ITCMD
- Buyers negotiating with an estate or with heirs whose estate distribution has already been completed
What to do, and by when
- Confirm the position of the judicial oversight authority and the tax authority in the state where the property is located before scheduling the deed. The rule is national; current practice is state-specific.
- File the ITCMD return and monitor the deadline, regardless of the deed. The notarial act neither interrupts nor suspends anything.
- Require the deed to state expressly the tax not yet paid, the warning given to the heirs, and the notification to the tax authorities — this is what protects the parties and the notary.
- Determine where the money to pay the tax will come from before executing the deed: sale of an estate asset, a state installment plan, an advance among heirs, or a contribution to be accounted for in the estate distribution.
- If registration is refused, assess referral of the registration objection for judicial review (suscitação de dúvida, Law 6,015/1973, Art. 198) or a writ of mandamus (mandado de segurança, a judicial remedy to protect a clear legal right), depending on the grounds for refusal.
The cost of inaction
A deed that never reaches registration leaves the family holding a document, a property that cannot be sold, and a tax bill that keeps growing.
Editorial record
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Pillar: 4 — Family in transformation
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Related service (performed in Brazil): out-of-court (notarial) probate (inventário extrajudicial) and estate distribution, ITCMD planning and installment arrangements, referral of registration objections for judicial review and writs of mandamus in registration matters
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Editorial tier: Silver
Sources: Out-of-court probate will no longer require advance payment of transfer tax — ConJur, August 22, 2026 (in Portuguese) · CNJ guidance on ITCMD resolves only part of the issue — ConJur, August 26, 2026 (in Portuguese) · Out-of-court probate will no longer require prior payment of transfer tax — CNJ Portal (in Portuguese) · CNJ publishes Resolution No. 695/26 and amends article on ITCMD payment in public deeds — Brazilian Notarial Association (in Portuguese) · CNJ authorizes out-of-court probate without prior payment of ITCMD — IBDFAM (in Portuguese) · So is paying ITCMD no longer necessary for probate? Not quite — Germano, Gonçalves e Inácio, IBDFAM, September 2, 2026 (in Portuguese) · CNJ changes probate procedures — September 5, 2026 (in Portuguese) · CNJ allows notarial probate before ITCMD payment, but state tax authorities object (in Portuguese) · São Paulo State Law No. 10,705/2000 — ALESP (in Portuguese)
Verification record
This week's coverage was checked against primary and official sources on September 7, 2026: the docket of Extraordinary Appeal (RE) 1,495,108 (Theme 1,348, binding precedent) on the Supreme Federal Court (STF) portal, with the September 2, 2026, plenary session ending without a vote, following the request to transfer the case to an in-person session that nullified the previous vote count; Federal Constitution, Art. 156, § 2, I; National Tax Code (CTN), Arts. 36, 37, and 168; STF Theme 796 (RE 796,376, decided on August 5, 2020); National Council of Justice (CNJ) Resolution No. 695/2026 and CNJ Resolution No. 35/2007, Art. 15; Request for Administrative Action (Pedido de Providências) No. 0008622-24.2025.2.00.0000, reporting Justice Mauro Campbell Marques, 12th Ordinary Session of August 18, 2026; Law No. 6,015/1973, Arts. 129, 148, 198, and 289; CTN, Arts. 134, VI, 151, VI, and 192; São Paulo State Law No. 10,705/2000, Arts. 8, I, 18, § 1, 21, and 25; Code of Civil Procedure (CPC), Art. 611; Central Bank of Brazil (BCB) Resolution No. 561, dated April 30, 2026, amending BCB Resolution No. 277/2022, effective October 1, 2026; Law No. 9,249/1995, Art. 18; Federal Revenue Secretariat (SRF) Normative Instruction No. 208/2002, Art. 26; Law No. 13,259/2016, Art. 21; Law No. 9,250/1995, Art. 23; Law No. 11,196/2005, Arts. 39 and 40; Decree No. 8,660/2016.
Recorded cautions. The hearing of Theme 1,348 is suspended, with no resumption date and no votes cast — any prediction of the outcome is conjecture, and the prospect of limiting the temporal effects of the ruling is a possibility, not a decision. The waiver of advance payment of the state inheritance and gift tax (ITCMD) applies to the notarial office; the Real Estate Registry officer's duty to verify compliance and the state laws requiring payment in full to record the instrument remain intact, with uneven application among states. The exclusion of nonresidents from capital gains exemptions and reduction factors is the tax authorities' position, with scholarly disagreement noted. The U.S. 1% tax on remittances appears as factual context, not as guidance on foreign law.
Excluded by choice: attachment of wages for debt unrelated to support obligations (a trial court decision without sufficient precedential weight); disclosure of an insured person's data and presumed nonpecuniary damages (the underlying decision is from 2025, not a new development); annulment of a gift of real property following a DNA test (no case number disclosed, awaiting confirmation); death of the purchaser under a purchase agreement and court-ordered conveyance to the estate (a synthesis article, not a new decision); a collective writ of mandamus concerning an ICMS state value-added tax benefit in relation to corporate income tax (IRPJ) and the Social Contribution on Net Profit (CSLL) (a topic suited to a large company's legal department); the September 2026 Visa Bulletin and remittance excise tax regulations (no effect on assets, family, or business in Brazil, or already published outside the coverage window).
About the firm
Andrade & Cintra Advogados is a boutique law firm dedicated to Civil, Corporate and Real Estate Law, with a focus on Family and Succession Law, concentrated on estate and succession planning, the structuring of family and asset-holding companies, corporate governance and the organization of wealth for succession purposes — always with business purpose, substance and legal compliance. International practice in cooperation with Sintra Legal & Partners.
About the author
Dr. J. Guilherme de Andrade Cintra — Founding Partner · OAB/SP nº 220.915. Editorial co-authorship assisted by artificial intelligence (Anthropic Claude) as editor, under the review and responsibility of the signing attorney.
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