Inventory is the procedure of listing and consolidating the estate of a deceased person, encompassing their assets and liabilities after death.
The inventory lawyer is essential to ensure that this procedure is completed without major complications. This content was developed by our specialized inventory lawyers so you can clarify your doubts about the topic. Here, you will learn about issues related to the subject, such as deadlines, costs, necessary documents, and mandatory procedures.
Additionally, we provide an explanation of the differences between judicial and extrajudicial inventories, which can be useful when choosing which model to adopt.
If you have any questions while reading or after finishing the material, please contact us!
What is Inventory?
Inventory is the process of listing and universalizing the estate, that is, the assets of a deceased person, including their movable and immovable properties, rights, and debts after their passing. This means that the entire set of movable and immovable assets, rights, and debts of the deceased are gathered to later be divided among those entitled to this inheritance – the heirs.
What Does an Inventory Lawyer Do?
Lawyers perform several functions during the inventory process, including: guiding heirs on their legal rights and obligations, analyzing the necessary documentation for the inventory, representing the interests of the heirs before the notary or court, drafting petitions and legal documents, negotiating agreements among heirs, resolving disputes and litigations, and ensuring that the process is concluded in accordance with the law.
Who Requests?
Generally, the person who handled the deceased's assets requests the inventory. However, anyone among those with the legitimacy to request the inventory can initiate it.
Article 616 of the Civil Procedure Code establishes who has concurrent legitimacy to request the opening of the inventory. They are:
- The surviving spouse or partner;
- The heir;
- The legatee;
- The executor;
- The assignee of the heir or legatee;
- The creditor of the heir, legatee, or the estate owner;
- The Public Prosecutor's Office, in cases involving incapacitated heirs;
- The Public Treasury, when it has an interest;
- The judicial administrator of the bankruptcy of the heir, legatee, estate owner, or surviving spouse or partner.
Is Inventory Mandatory?
Yes. Inventory is mandatory to manage the deceased person's assets. Otherwise, the assets will remain blocked and subject to fines. This means they cannot be used, sold, or managed.
However, a question arises: if there are more debts than assets, will I have to pay for them?
The responsibility for paying the deceased's debts is limited to the value of the inheritance. This means that if the total estate is R$100,000, for example, but the deceased's debt is R$120,000, the heirs will not need to pay the remaining balance. However, they are obligated to pay the owed amount up to the limit of the inherited assets if they choose not to renounce the inheritance.
What Are the Costs?
The costs of the inventory process essentially consist of the Tax on Transmission Due to Cause of Death and Donations (ITCMD), provided there are no additional fines. This tax is charged as a percentage of the value of the assets left by the deceased. In the Federal District, it starts at 4% of the declared value.
Is There a Deadline to Open the Inventory?
Depending on the situation, the inventory can be conducted either judicially or extrajudicially. In either case, the deadline to open the inventory is 60 days from the date of death, and any delay is subject to fines defined by the federation state where it occurs.
What If the Inventory Is Not Opened Within the Established Deadline?
The fine will depend on each state's treasury and will be charged as a percentage over the ITCMD. In the Federal District, for example, the fine can be up to an additional 20% on top of the ITCMD, which, as we saw, is 4%.
Example:
If a deceased person leaves a total of R$100,000 in assets, R$4,000 will be paid in tax for processes within the deadline and R$4,800 for those that are delayed.
How Can I Avoid Paying ITCMD Fines?
- Public Deeds: Before notarization, it is important to note that, to avoid paying fines related to the Tax on Transmission Due to Cause of Death and Donations (ITCMD), the inventory must be opened within 60 days from the individual's death. This requirement is outlined in applicable laws and aims to ensure that the inventory process is initiated within a reasonable timeframe;
- Judicial Processes: In the case of inventories proceeding through judicial processes, it is essential to open the inventory within 60 days after the death to pay the ITCMD without incurring fines. Additionally, regarding the timing of the tax payment, the legislation establishes that it must be paid within 30 days after the homologatory decision of the calculation or the order that determines its payment, whichever comes first. This determination aims to ensure compliance with fiscal obligations within a defined period after the conclusion of the judicial inventory process.
It is recommended to consult a specialized legal professional to obtain personalized guidance, considering specific legislation and the individual circumstances of the case in question.
Can I Lose the Inheritance If I Don't Open the Inventory Within the Established Deadline?
Typically, the deadline for opening the inventory is established to allow interested parties to become aware of the death and act according to legal procedures. This also allows potential creditors to present their claims against the deceased's property. If the deadline expires without the inventory being opened, fines will be applied to the estate's value.
Therefore, depending on the value of the deceased's estate, debts, and applicable fines, you may receive a significantly smaller amount. Hence, seek assistance from a professional in succession law to avoid losses.
