The slowness of the Judiciary and the bureaucratization of its procedures makes the search for the extrajudicial route an interesting alternative to resolve conflicts, especially in matters related to family and succession.
In order to use the extrajudicial route, however, it is necessary to comply with requirements. For probate proceedings, the Code of Civil Procedure of 2015 is categorical by providing, in its article 610, that: "If there is a will or interested party legally incapable, the judicial probate shall be carried out."
That is, the requirements determined by the legislation for the realization of probate through public deed are: absence of a will and absence of an legally incapable interested party.
Although the norm is clear, there is a tendency to relativize these impositions, superseding the autonomy of the will and the tendency of seeking alternative resolutions for conflicts.
For some time now, both laws and jurisprudence have been moving towards reducing bureaucracy in processes and procedures as a way to effectively hand over jurisdiction to the jurisdictional parties and allow the rapid resolution of certain issues.
The Superior Court of Justice (STJ) has already decided that it is possible to carry out extrajudicial probate and partition when the deceased has left a will, provided that all heirs are in agreement and are capable of performing acts of civil life.
There is also a mobilization to make the possibility of carrying out a more flexible probate, even if there are legally incapable heirs.
There are several decisions from São Paulo’s courts that authorized the drafting of a public deed for cases in which the heir is incapable as long as the division takes place in an ideal way, that is, with equal division of the assets among the heirs.[1]
Acre’s Court of Justice has issued the Ordinance 5.914-12, of September 8, 2021, regarding the Court of Public Records, Orphans and Successions of the District of Rio Branco, which provides for the possibility of extrajudicial probate in case of incapable interested heirs, provided that the final draft is previously authorized by the court, in a simple and unbureaucratic procedure, with no costs.
In addition, in February 2023, Rio de Janeiro’s Code of Rules of the Corregedoria-Geral da Justiça provided, in its chapter XII, section III, the regulation of probate through public deed, even when there is an incapable interested party and unequal division of assets, as long as subjected to prior judicial authorization, under issuance of a permit.
It is important to mention the recent understanding of the state of Santa Catarina, which, in February 2023, began to authorize the carrying out of probate involving minors, provided that the division is ideal, according to Circular 51, of February 24, 2023, of the Corregedoria-Geral da Justiça do Estado de Santa Catarina.
Among the reasons presented for the flexibilization and possibility of carrying out probate with incapable heirs in the application submitted by the Notarial College of Brazil – Section of Santa Catarina (CNB-SC), is:
"The extrajudicial route has singular importance in the realization of this facet of access to justice. This scenario, unless better judged, should also contemplate the legally incapable people, who have an equal right to a multi-door, efficient, fast and safe justice. Depriving them of this possibility could be interpreted as an unjustified restriction of the possibilities to access and achieve their own rights."
The Brazilian Institute of Family Law (IBDFAM) sent a request for measures to the National Council of Justice (CNJ) to regulate on a federal scale the extrajudicial performance of marital dissolution and probate proceedings, when there are incapable heirs and wills, provided that the act is consensual.
The institute reinforces the notion that, since the division is ideal, there is no harm in opting for the extrajudicial route.
It is concluded, therefore, that the corregedorias, judges and courts of Justice themselves are solely taking all the efforts to relativize the requirements and obstacles imposed by the legislation for the use of the extrajudicial route. To date, there is no federal law on the subject, and, consequently, there is a lack of uniformity in the application of the rules by the federative entities.
[1] Examples: processes 1016082-28.2021.8.26.0625 and 0000691-27.2021.8.26.0374.
