National Council of Justice (CNJ) Resolution No. 695/2026 waived prior payment of ITCMD to execute the probate deed. The waiver applies to the notary — not to the Real Estate Registry.
What happened
At its 12th Regular Session on August 18, 2026, the CNJ Plenary unanimously decided Request for Administrative Action No. 0008622-24.2025.2.00.0000, with National Inspector General of Justice, Justice Mauro Campbell Marques, as reporting justice, filed by the Notarial College of Brazil – Federal Council. The corresponding regulatory act is CNJ Resolution No. 695 of August 26, 2026, signed by CNJ President Justice Edson Fachin and published in DJe/CNJ No. 206/2026 of August 28.
The previous wording made execution conditional on prior payment of the applicable taxes. The new wording reads:
Art. 15. The execution of public deeds of probate and distribution is not conditional on proof of prior payment of the Tax on Transfers upon Death and Gifts (ITCMD).
§ 1 The notary shall record in the deed the declaration of the parties, duly advised by their assisting attorney(s), regarding their awareness of the principal and ancillary tax obligations, and the assessment and payment of ITCMD under the applicable state or Federal District legislation, mentioning any exemptions or instances of non-taxability.
§ 2 If ITCMD has not been paid in advance, the notary shall notify the tax authorities of the execution of the public deed of probate and distribution within 5 days, or as otherwise provided by tax legislation.
Note that the duty to notify the tax authorities is conditional: it applies only when the tax has not been paid before the act. Of the three requests submitted by the notarial college, only the one concerning ITCMD was granted; those concerning Art. 12-B, V, and Art. 34 of Resolution No. 35/2007 were denied.
The technical reading
The probate deed is an instrument of title; it is not a transfer. For real estate, ownership is transferred only upon registration (Art. 1,245 of the Civil Code), and it is at registration — not at the notary's office — that the CNJ rule reaches its limit.
Art. 289 of Law No. 6,015/1973 imposes on the registry officer a duty to verify payment of taxes due as a result of the acts submitted to that officer. The resolution did not affect that duty, nor could it have: the CNJ's authority concerns the activities of notarial and registry services (Art. 103-B, § 4, of the Constitution), not the tax obligation established by the states in exercising their authority under Art. 155, I, of the Constitution. The CNJ changed the point at which payment is required at the notarial office; it did not eliminate the requirement at the registry.
The practical effect varies by state, and that is the part that matters.
In São Paulo, State Law No. 10,705/2000 is explicit on three points that the CNJ resolution does not reach. Art. 8, I, makes the notary and other officers jointly and severally liable for the tax on taxable acts performed by or before them. Art. 18, § 1, requires that, in a distribution of property or division of jointly held assets, the tax be paid within fifteen days after the judgment becomes final and unappealable or before execution of the public deed. And Art. 25 closes the door to registration: "Notaries, court clerks, and Real Estate Registry officers shall not execute, register, or annotate acts and instruments within their duties without proof of payment of the tax."
In Paraná, Art. 26, § 8, of State Law No. 18,573/2015 is equally direct: "Full payment of the tax is mandatory for recording the transfer instrument at the Real Estate Registry office." The Court of Justice of Paraná upheld the requirement even with an installment plan in progress — consistent with Art. 151, VI, of the CTN, since an installment plan suspends enforceability of the tax claim but does not constitute payment for purposes of discharge.
Hence the outcome that deserves attention: it is now legally possible to execute the deed without paying, and at the same time impossible to register it without paying. Anyone who reads the headline and schedules the deed trusting that the tax can wait may end up with a valid document, a mounting penalty, and real estate that cannot be sold.
There is also a favorable effect. An early deed immediately resolves the portion of the estate that does not depend on real estate registration: withdrawal of bank balances, transfer of vehicles, assignment of quotas (equity interests in a limited liability company), and establishing the heirs' authority to perform administrative acts. For families whose probate is stalled solely for lack of cash to pay the tax, this unlocks the rest of the assets while ITCMD is assessed and arranged for payment in installments — provided expectations concerning the real estate are properly calibrated.
Who this reaches
- Heirs whose probate is stalled for lack of funds for ITCMD, especially when the real estate itself is the source of payment
- Families with real estate in more than one state, subject to different state rules within the same estate
- Heirs residing abroad, for whom each new local requirement means another round of powers of attorney and apostilles
- Estates that include equity interests or an operating business, where delays in establishing the heirs' authority hold up decisions
- Surviving spouses and domestic partners who need immediate access to accounts and receivables
What to do, and by when
- Before scheduling the deed, identify the state legislation applicable to each property in the estate. The rule that determines registration is that of the state where the property is located, and the CNJ resolution did not change it.
- Assess ITCMD and the state payment deadline in parallel with the deed, not afterward. The 5-day deadline for notifying the tax authorities means the state treasury will know about the execution — assessment is no longer an issue that can be deferred.
- In estate planning, separate assets that depend on real estate registration from those that do not. An early deed has real utility for the second category and limited utility for the first.
- When considering an installment plan, check its effect on registration. In states that require full payment to record the title, an installment plan resolves tax enforceability without resolving registration.
- Observe the deadline for opening probate — 2 months from the opening of succession (Art. 611 of the CPC) — and state penalties for late payment, which accrue regardless of the procedure chosen.
The cost of inaction
A deed executed with the wrong expectations produces a partially settled estate, with mounting ITCMD penalties and the family's main asset tied up at the registry.
Editorial record
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Pillar: 4 — Family in transformation
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Related service (performed in Brazil): out-of-court probate and distribution, ITCMD assessment, installment arrangements and defense, real estate registration and title record regularization
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Editorial tier: Silver/Gold
Sources: CNJ Resolution No. 695 of August 26, 2026 (in Portuguese) — official text (DJe/CNJ No. 206/2026 of August 28, 2026) · CNJ — Out-of-court probate will no longer require prior payment of transfer tax (in Portuguese) (Request for Administrative Action [Pedido de Providências] No. 0008622-24.2025.2.00.0000, reporting Justice Mauro Campbell Marques, 12th Regular Session, August 18, 2026) · ConJur, August 22, 2026 — Out-of-court probate will no longer require advance payment of transfer tax (in Portuguese) · ConJur, August 26, 2026 — Jhonson Cardoso Guimarães Neves, CNJ guidance on ITCMD resolves only part of the issue (in Portuguese) · ConJur, August 30, 2026 — Fernando Keutenedjian Mady, Moving tax matters out of court and public notice of succession through registration (in Portuguese) · IRIB, August 20, 2026 — ITCMD will no longer be required for a public deed of out-of-court probate (in Portuguese) · CNJ Resolution No. 35/2007 (in Portuguese) — consolidated text · São Paulo State Law No. 10,705/2000 (in Portuguese) — Arts. 8, I; 18, §§ 1 and 2; 25 · Paraná State Law No. 18,573/2015 (in Portuguese) — Art. 26, § 8 · Law No. 6,015/1973, Art. 289; Civil Code, Art. 1,245; National Tax Code (CTN), Art. 151, VI; Code of Civil Procedure (CPC), Art. 611; Federal Constitution, Arts. 103-B, § 4, and 155, I
Verification record
This week's topics were checked against primary and official sources on August 31, 2026: National Council of Justice (CNJ) Resolution No. 695 of August 26, 2026 (CNJ Electronic Judicial Gazette [DJe/CNJ] No. 206/2026 of August 28, 2026) and CNJ Resolution No. 35/2007; Request for Administrative Action (Pedido de Providências) No. 0008622-24.2025.2.00.0000, reporting Justice Mauro Campbell Marques, 12th Regular Session of August 18, 2026; Law No. 15,484 of August 4, 2026 (Federal Official Gazette [DOU] of August 4, 2026, extra edition) and Superior Court of Justice (STJ) Internal Rules Amendment No. 55, published on August 26, 2026; decision of the U.S. District Court for the Southern District of New York in CLINIC v. Rubio (August 21, 2026); U.S. Department of State announcement of August 25, 2026 and September 2026 Visa Bulletin; São Paulo State Law No. 10,705/2000, Arts. 8, I, 18, § 1, and 25; Paraná State Law No. 18,573/2015, Art. 26, § 8; Law No. 6,015/1973, Art. 289; Law No. 10,833/2003, Art. 26; Federal Revenue Secretariat (SRF) Normative Instruction No. 208/2002; Decree No. 8,660/2016; Civil Code, Arts. 108, 657, and 1,245; National Tax Code (CTN), Art. 151, VI; Code of Civil Procedure (CPC), Arts. 23, II, 611, and 1,035-A; Federal Constitution, Arts. 103-B, § 4, 105, §§ 2 and 3, and 155, I.
Cautions recorded. The waiver of prior payment of state inheritance and gift tax (ITCMD) applies to the notary's office; the Real Estate Registry officer's oversight duty (Art. 289 of Law No. 6,015/1973) and state laws requiring full payment to record the title remain intact — application will vary among states. The U.S. decision in CLINIC v. Rubio is subject to appeal, and no resumption date has been announced for the suspension of consular appointment scheduling of August 25, 2026; the international content is factual context, not guidance on foreign law.
Left out by choice: Direct Action of Unconstitutionality (ação direta de inconstitucionalidade, ADI) 7,943 (Supreme Federal Court [STF], virtual session concluded on August 21, 2026), whose date fell outside the window and which had no new developments during the week, and the STJ ruling on the high-value family home exemption (bem de família), whose case identification and date were not confirmed in a primary source.
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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