A decision by the Court of Justice of Rio de Janeiro (TJRJ), in May, annulled the sale of a property belonging to a probate estate due to the absence of a statement by the estate’s administrator (inventariante) – the estate (espólio) is the set of assets left by the deceased to their heirs, and one of them is generally chosen as the administrator, the person responsible. In this Rio de Janeiro case, the Superior Court of Justice (STJ) upheld the TJRJ’s judgment.
The action brought by the estate disputed the purchase and sale of real estate formalized with the deceased’s daughter and wife, but without the participation of the administrator appointed in the probate proceeding. The case began in 2015.
The STJ justice and rapporteur of the case, among other grounds, concluded that, in addition to the absence of a public deed, one of the heirs did not issue a declaration of will regarding the legal transaction, which invalidates the transaction.
Requirements – From the moment of death, the inheritance is transmitted to the heirs, but the individualization of the assets will only occur at the time of the partition, whether judicial or extrajudicial (through a notary’s office). However, in the course of the judicial probate, it may be of interest to the heirs to sell a given asset before the conclusion of the partition.
In a case of this type, according to an article by the specialist Jamil Hellu, in Gazeta Brazilian News, the sale may be carried out upon the fulfillment of three requirements: the consent (agreement) of all the heirs, judicial authorization to carry out the sale by means of a court order (alvará judicial), and payment of the ITCM (Causa Mortis Transfer Tax, owed by the heirs to the State Treasury).
← Back to blog