Extrajudicial probate without ITCMD (state inheritance and gift tax) paid before the deed becomes possible, but the tax remains due.
The plenary session of the CNJ (Conselho Nacional de Justiça, the National Council of Justice) has decided that extrajudicial probate without the ITCMD being collected before the deed is permitted. The decision removed from CNJ Resolution No. 35/2007 the rule that made the act conditional upon prior payment of the tax. In practice, the heirs may execute the deed of probate and partition before the notary and settle the tax afterwards.
The tax remains due, only the moment of payment changes
The decision neither forgives nor reduces the ITCMD. It merely removes payment from the list of requirements for the notary to draw up the deed. Previously, the family had to calculate the tax, pay it and only then formalise the partition. Now, the order may be different.
For this reason, the burden remains with the heirs. The deed must contain an express clause in which the parties declare their awareness of the outstanding tax and undertake the obligation to pay it. In addition, the notarial act must be reported to the State Treasury.
What the notary remains obliged to do
The notary retains the duty to request debt certificates, whether positive or negative. He or she must also record in the deed any debts found. However, the notary may not refuse to perform the act because a negative certificate is lacking or because the tax has not been paid.
According to the National Internal Affairs Judge of Justice (Corregedor Nacional de Justiça), the solution respects the autonomy of the heirs and the prohibition on political sanctions. In other words, the State may not use the notary’s office as an instrument of collection. The tax credit remains enforceable through tax foreclosure proceedings.
How the family should organise itself
Our understanding is that the measure brings greater speed, but does not eliminate the risk of fines and interest if the tax remains unpaid for a long period. Therefore, it is advisable to plan payment together with the partition, rather than leaving it for later with no set deadline. Each State has its own rules on calculation and due dates.
The next concrete step is to read the full text of the decision and the state ITCMD legislation before signing the deed.
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