The plenary National Council of Justice (CNJ) removed the requirement to pay the state inheritance and gift tax (ITCMD) before executing a probate and distribution deed. The tax remains due — what changed is the order of the steps.
What happened
At its 12th Regular Session of 2026, held on August 18, 2026, the plenary National Council of Justice adjudicated Request for Administrative Measures No. 0008622-24.2025.2.00.0000, with Justice Mauro Campbell Marques, National Inspector of Justice, as reporting justice. The decision was unanimous.
The provision affected is Art. 15 of CNJ Resolution No. 35, dated April 24, 2007, whose wording was direct: "Payment of the applicable taxes must precede execution of the deed." The plenary removed this requirement based on the heirs' private autonomy, the notarial duty to inform, and the constitutional prohibition on coercive tax-collection sanctions — the prohibition on the government blocking a legal act as an indirect means of collecting tax.
The decision established three safeguards. First: the notary remains required to request tax debt certificates, whether showing outstanding debt or no debt, and inform the parties of the results. Second: the deed must contain an express statement by the heirs that they are aware of the outstanding tax obligation. Third: the act must be reported to the state treasury, which will then collect ITCMD through the proper channel — a tax enforcement action (execução fiscal).
In the same proceeding, the CNJ rejected two other requests made by the Brazilian Notarial College: dispensing with a prior judicial decision in out-of-court (notarial) probate (inventário extrajudicial) involving a revoked or lapsed will, and authorizing a deed of divorce or dissolution of a stable union with property division when there are minor children or children lacking legal capacity. Nothing changed on this second point: a prior judicial determination of custody, parenting time, and support remains necessary.
One caution should be noted: as of the editorial cutoff, the amendment existed as a plenary decision in a Request for Administrative Measures, with no published resolution or administrative rule formally amending the text of Resolution 35/2007. In practice, this means that notaries in different states may take weeks to standardize the procedure, and state treasuries may resist.
The technical reading
What changed was not the tax. It was the order.
ITCMD remains fully due, in the same amount, with the same interest and the same penalty. What the decision did was separate two dimensions that Resolution 35/2007 had kept joined: the formalization of the distribution and the collection of the tax. Until August 18, anyone without money to pay ITCMD could not execute the deed; and anyone unable to execute the deed could not sell the property to raise the money for ITCMD. It was a circular bind, and the usual way out — judicial probate with a court order authorizing a sale — took years.
From now on, the sequence can be reversed: deed, registration, sale, payment. An heir who needs to sell the inherited apartment to pay the inheritance tax can now do exactly that. It bears remembering that Art. 11-A of the same Resolution 35/2007 already authorizes the sale of estate property by public deed, without judicial authorization, reinforcing this route.
This is not an amnesty, and that point must be made clearly. By removing the notary as a barrier, the decision shifts the dispute to a later stage: the state will collect through a tax enforcement action, with attachment (penhora) of assets that, by then, will already be registered in the heirs' names — and, if sold, in the names of good-faith third parties. Anyone who executes a deed without paying assumes a definite liability, with the statute of limitations (prescrição) running in their favor, but interest also accruing against them. The decision is a cash-flow tool, not a tax-saving tool.
The timing amplifies the effect. Complementary Law No. 227/2026 reorganized ITCMD and required states to adopt progressive rates, pushing rates upward as state implementing laws are enacted and comply with the required waiting periods before tax increases take effect. No state implementing law was published during the week. But the combined result is clear: anyone with an open probate stalled for lack of cash has lost the main reason to remain stalled.
Add to this CNJ Resolution No. 571, dated August 26, 2024, which had already considerably expanded the out-of-court route: Art. 12-A permits probate by deed even when a minor or a person lacking legal capacity is involved, provided that the inheritance share is paid as an undivided interest in each asset and the Public Prosecutor's Office issues a favorable opinion; and Art. 12-B permits probate by deed even when there is a will, subject to authorization by the probate court in a final, unappealable judgment. The main clause of Art. 610 of the CPC retains its original wording — the expansion came through a CNJ act, not legislation. Taking 2024 and 2026 together, out-of-court probate is no longer the exception reserved for uncomplicated families rich in liquidity.
Who this reaches
- Heirs with open probate proceedings stalled for lack of funds to pay ITCMD
- Families whose only significant asset is the property that would need to be sold to pay the tax
- Estates with heirs residing abroad, who previously had to send money to Brazil before any act could take place
- Probate involving a minor, a person lacking legal capacity, or a will, which can now proceed out of court under CNJ Resolution 571/2024
- Members of a family business whose succession of quotas (equity interests in a limited liability company) is stalled, directly affecting company governance
What to do, and by when
- Identify stalled probate proceedings and the actual cause of the delay. If the sole cause is a lack of cash to pay ITCMD, the obstacle no longer exists. If there is a dispute among heirs, an unconfirmed will, or a person lacking legal capacity without an opinion from the Public Prosecutor's Office, a different route is still required.
- Calculate ITCMD before executing the deed, not afterward. Executing a deed without knowing the amount due trades one problem for another. The tax base under Complementary Law 227/2026 requires a technical valuation — especially when the estate includes company quotas.
- Confirm the procedure with the notary's office before scheduling the act. Until a formal resolution amending Resolution 35/2007 is issued, application will be uneven among states and notarial offices.
- Document in the deed the parties' awareness of the outstanding tax obligation and arrange notification to the state treasury. This is an express safeguard in the decision and protects the act against subsequent challenges.
- Assess the sequence of distribution, sale, and payment in light of the state's tax waiting periods. In states that have not yet enacted legislation implementing Complementary Law 227/2026, the difference between completing the distribution this fiscal year or the next may be significant.
The cost of inaction
Every year of stalled probate is a year of interest accruing on a tax that has not ceased to exist, on assets that no one can sell, formally rent out, or pledge as collateral.
Editorial record
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Pillar: 4 — Families in transformation
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Related service (performed in Brazil): out-of-court (notarial) probate (inventário extrajudicial) and estate distribution by public deed; calculation and planning of state inheritance and gift tax (ITCMD); sale of estate property
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Editorial tier: Gold
Sources: CNJ — Out-of-court probate will no longer require prior payment of transfer tax (August 18, 2026) (in Portuguese) · CNJ Resolution No. 35/2007 (in Portuguese) · CNJ Resolution No. 571/2024 (in Portuguese) · Migalhas, August 20, 2026 (in Portuguese) · IBDFAM, August 20, 2026 (in Portuguese) · IRIB (in Portuguese) · 2015 Code of Civil Procedure (CPC), Art. 610 (in Portuguese)
Verification record
This week's topics were checked against primary and official sources on August 24, 2026: the National Council of Justice (CNJ) official news release of August 18, 2026, and the texts of CNJ Resolution No. 35/2007 and CNJ Resolution No. 571/2024; Superior Court of Justice (STJ) Case Law Bulletin No. 897, dated August 18, 2026; the decision of the U.S. District Court for the Southern District of New York in CLINIC et al. v. Rubio, No. 1:26-cv-00858; USCIS Policy Alert PA-2026-09; Federal Register 91 FR 45324; the September 2026 Visa Bulletin; SRF Normative Instruction No. 208/2002; RFB Normative Instruction No. 2,172/2024; Decree No. 9,580/2018 (Income Tax Regulations, RIR); Law No. 10,833/2003; Law No. 8,981/1995; Law No. 6,015/1973; Decree No. 8,660/2016; CNJ Administrative Rule No. 149/2023; the 2015 Code of Civil Procedure (CPC) and the Introductory Law to the Rules of Brazilian Law (LINDB).
Recorded cautions. As of the editorial cutoff, the amendment to Art. 15 of CNJ Resolution No. 35/2007 exists as a plenary decision in a Request for Administrative Measures, with no resolution or administrative rule published — application is likely to be uneven among states during the first few weeks. In REsp 2.117.867/RS, the panel composition and holding were checked against the official release of Bulletin No. 897; the date of the adjudication session was not confirmed in a primary source, and the text therefore cites the release, not the date of adjudication. Note the common factual error: Justice Gurgel de Faria was the dissenting reporting justice; Justice Regina Helena Costa authored the judgment.
Nonbinding: REsp 2.117.867/RS is a panel decision with persuasive authority; it is not a precedent statement, a repetitive-appeal ruling, or a binding holding.
Deliberate exclusions during the period, for lack of new developments: Civil Code reform (Bill 4/2025), the AI Legal Framework (Bill 2338/2023), Law No. 14,711/2023 (Legal Framework for Guarantees), CGIBS, trusts, and Law No. 14,754/2023.
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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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