On October 17, the Judicial Review Board of the State of Rio de Janeiro issued CGJ Ordinance 77/22 with the intention of facilitating the disposal of assets of estates before completion of probate, without the need for intervention by the Judiciary.

Under the new rule, it will be possible to sell an estate's assets by public deed, regardless of court authorization. The deed, however, must include and prove the payment, as part of the price, of the full causa mortis transfer tax on the entire inheritance, in addition to prior deposit of the fees due for the extrajudicial probate. In other words, instead of giving this part of the price to the seller, the purchaser will directly discharge these expenses of the estate.

The change aims to facilitate the sale of real estate during out-of-court probate, whether due to urgency on the part of the parties or the heirs' lack of resources to complete the probate process. It is not uncommon for the cost of fees and taxes to prevent the division of the estate or to resort to the courts in the probate process in an attempt to obtain a court order to authorize the sale of part of the estate and thus raise funds to pay for these expenses. The new rule, therefore, can be seen as an important litigation prevention measure.

It is fundamental to note, however, that failure to draw up the public deed of extra-judicial probate within 90 days from the acknowledgement of the prior deposit, unless there is a fully justified reason, will cause the seller to lose the fees deposited by the purchaser in favor of the notary public, since, in this case, the notarial act will be considered effectively performed.

Although the real estate transaction itself is not affected, it is recommended, therefore, that the parties assess the inclusion of a regulation on this subject in the deed of sale and purchase, with possible consequences and penalties if the established deadline is not met, in order to provide greater security for the parties and the transaction.

The property sold will be listed in the estate list for the purposes of determining the emoluments, tax classification, and calculation of the apportionment, but it will not be subject to partition. Its sale will be noted in the probate deed.

This new rule does not apply to disposal of real estate located outside the State of Rio de Janeiro and will also not control in cases where probate cannot be done up by a public deed in an extrajudicial manner and/or where there is an unavailability of assets in relation to one of the heirs or the executor.

The new regulation is an incentive for heirs to proceed with the extrajudicial division of property. At the same time, the rule relieves the Judiciary by stimulating the payment of transmission causa mortis, speeding up the process and benefiting the purchaser, who gains legal security with the regulation of the transaction.