Probate proceeding. Delay in initiating probate proceedings may result in a fine for heirs. Check out this information from Minas Gerais, in the article by Dierle Nunes and Moisés M. Oliveira, published on the Conjur website on the 2nd of this month.
The state of Minas Gerais, exercising the competence conferred upon it by the Constitution of the Republic, and based on Resolution 9 of 1992 of the Federal Senate, enacted Law 14,941 of December 29, 2003, which institutes and regulates the ITCD, as well as Decree 43,981/05. Since its enactment, the law has undergone several amendments through the publication of other legal instruments, with its most recent modification resulting from Law 22,796, of 12/28/2017.
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Unquestionably, as advocated by the Minas Gerais legislation itself (item I, of article 1, of Law 14,941/03) the ITCMD is levied, among other hypotheses, on the transfer of ownership of an asset or right, upon the occurrence of death.
As is well known, upon the death of the natural person, his assets are transferred automatically to his legitimate and testamentary successors; this consists of the widely known principle of droit de saisine (Civil Code, article 1,784). However, since the estate of the decedent constitutes a universality, it becomes necessary to ascertain which assets make up the estate, in order to define what actually passed into the ownership of the successors.
For this purpose, there exists the special procedure of probate and partition (articles 610 to 673 of the CPC), which has the purpose of defining the components of the hereditary estate and determining who are the heirs who will receive the inheritance (probate), as well as defining the portion of the assets that will fall to each of them (partition).
Probate proceeding may generate a fine
The legislator attributed to judicial probate a character of urgency, setting in article 611 of the CPC a period of two months for its initiation. Evidently this period is not preclusive; however, if it is not complied with, the state public treasury (SEF) may impose a fine, related to the causa mortis tax, in accordance with the understanding consolidated by the STF in the wording of Precedent 542.
The wording merely confirms the possibility of the States, within the limits of their legislative competence in the tax sphere (article 155, I, of the Constitution), setting a fine to deter the inertia of the successors, who, by not filing the probate procedure, would make it impossible to ascertain and collect the ITCMD.
Check out the full article here.
Source: Conjur
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